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Chicago  and  the  Constitution, 


REPORT  TO  THE  CIVIC  FEDERATION. 


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B.  AlvLEN  FROST, 
ROBERT  McMURDY, 
HARRY  S.  MECARTNEY. 

Committee. 


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BAHHANO  a  MklM  PRINT.   Cmwmo. 


O  i\    J  /-*  J 


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•  •  •  • 


OUTLINE  OF    CIVIC   FEDERATION   COM- 
MITTEE REPORT. 


The  report  deals  with  the  question  of  amendment  or 
convention. 

It  schedules  some  changes  in  the  constitution  suggested 
heretofore  by  various  b<xlies.  and  outlines  some  new  ones 
for  the  purpose  of  finding  the  widest  possible  scope  of 
present  demands  for  constitutional  changes.  It  then  con- 
cludes that  these  (all  of  which  it  does  not  commit 
itself  to  recommend),  and  even  many  more,  are  not 
enough  to  impel  the  calling  of  a  convention,  a  step  which 
it  condemns  as  unnatural  to  a  "going"  state.  The  toler- 
ance toward  such  bodies,  prevalent  in  most  of  the  Amer- 
ican states,  it  attributes  to  a  "habit"  acquired  in  their 
formative  periods. 

It  finds  the  proj^er  function  of  a  convention  to  be  -i 
creative  or  constructive  one.  and  that  unless  a  state  has 
l>ecome  so  diseased  as  to  need  practical  re-creation,  there 
is  no  other  use  for  it.  It  takes  the  i>osition  that  all  needed 
Qiicago  or  local  reforms  can  l)e  had  under  one  amend- 
ment, and  submits  the  form  of  the  Qiicago  amendment 
last  offered  in  the  assembly  simply  for  the  purposes  of 
testing  this  question,  and  affirms  that  if  adopted  it  would 
l>e  valid.  It  affirms,  secondly,  that  such  an  amendment 
could  validlv  be  i)laced  as  a  sq>arate  and  additional  article 
to  the  constitutic^n :  and,  thirdly,  that  it  could  l)e  addetl 
thereto  as  a  separate  section. 

It  names  seven  lawyers  of  Chioag(i  to  whom  the  re- 
|X)rt,  and  the  arguments  api)cn(le(l.  have  l^een  submitted, 
and  states  that  their  conclusions,  whether  confirmative  or 
negative  u|)on  the  three  proji»)sitions  al)ove.  will  be  given 
out  when  received.  In  case  the  views  of  these  lawyers  Ik- 
scriouslv  divergent,  it  |K)ints  out  a  metluxl  of  having  the 
matter  tested  in  the  Supreme  Court  early  in  the  commg 
session  of  the  assembly  by  obtaining  an  advisory  (^punon 
ui)on  the  subject,  and  in  time  for  another  step  to  l>e  taken 
bv  the  assemblv  in  ca^c  of  nn  :u1vor<o  opinion. 


tf  rf-^^-  r^#^ 


'  'iTi'thV  contingency  that  the  legal  conclusion  given  by 
the  committee  be  not  accepted  as  sound,  or  sustaine^d  upon 
a  test,  it  recommends  the  plan  of  first  repealing  the  one- 
article-at-a-time  limitation  and  then  passing  Chicago 
enabling  amendments,  so  called.  It  shows  that  under  this 
latter  plan,  with  an  extra  session  of  the  legislature  and  a 
special  state  election  arid  some  other  minor  incon- 
veniences, the  needed  Chicago  legislation  could  become 
consummate,  and  be  in  force  in  the  fall  of  1905.  It 
schedules  the  steps  requisite  to  hold  a  conven- 
tion, and  points  out  that  under  that  metho^l  it  will  take 
until  1903  with  a  special  state  election  or  until  1909  in  the 
regular  wa}^  to  witness  desired  legislation  in  force. 

An  appeal  is  made  for  thorough  study  of  the  subject, 
and  for  harmony  O'f  action. 

The  appendix  is  divided  into  "Part  I"  and  "Part  II." 

In  Part  I  the  arguments  heretofore  made  by  the  State 
Bar  Association,  and  others,  against  the  validity  of  an 
amendment  of  the  kind  submitted,  are  treated  seriatim., 
and  the  legal  conclusions  of  the  committee  are  set  forth 
at  the  end. 

In  Part  II  the  chief  principles  upon  which  the  conclu- 
sio'us  in  Part  I  are  based,  is  enlarged  upon,  viz. :  that  the 
limitation  upon  the  power  of  amendment  should  be 
strictly  construed. 

It  is  attempted  therein  tO'  show  how  near  to  the  heart 
of  state  life  lies  the  power  tO'  change  constitutions,  and 
hence  that  limitations  upon  the  power  must  be  subject  to 
a  strict,  if  not  doubly  strict,  construction. 

The  apology  for  the  length  of  the  report  (some  54 
pages)  is  that  much  confusion  has  arisen  upon  the  sub- 
ject, and  that  one  cannot  aid  much  in  dispelling  con- 
fusion upon  a  subject  chiefly  technical  and  many  featured, 
by  merely  briefing  up  reasons  or  scheduling  one's  own 
conclusions. 


Chicago  and  the  Constitution. 


REPORT  TO  TH^  CIVIC  FEDE;RATI0N. 


Chicago  faces  again  but  with  heightened  interest  the 
subject  of  constitutional  reform. 

A  resolution  for  an  amendment  to  the  constitution 
prepared  at  the  instance  of  the  Civic  Federation  accom- 
panied by  a  report  explaining  its  scope,  etc.,  was  intro- 
duced in  the  last  assembly  and  reported  out  of  commit- 
tee; but  owing  to  the  complications  arismg  from  the  state 
apportionment  contest  and  other  causes  did  not  come  to  a 
vote. 

A  resolution  for  a  constitutional  convention  was 
offered  in  the  House  of  Representatives  and  received  the 
earnest  support  of  Speaker  Sherman,  but  was  defeated 
by  a  vote  of  66  ayes  to  45  nays,  most  of  those  opposed 
thereto  not  voting. 

On  such  a  resolution  as  on  one  for  an  amendment,  a 
vote  of  two-thirds  is  requisite. 

The  measure  lacked  a  decisive  number  of  affirmative 
votes;  yet  the  tOial  vote  in  favor  of  it  was  large. 

Since  then  the  subject  has  been  more  or  less  in  the  ai»* 
of  public  discussion.  The  press  frequently  treat  of  it, 
the  necessity  of  some  chanf^e  is  becomin<y  more  aj  parent. 


the  evils  of  Chicago  seem  to  be  pressing  harder  and  sides 
are  being  taken,  and  clubs  and  other  bodies  are  pledging 
their  support  to  one  or  the  other  proposed  method  of 
relief. 

Chicago  certainly  needs  relief  through  constitutional 
changes. 

The  remainder  of  the  state  also  needs  some. 
If  Chicago  intends  to  move  in  the  matter,  her  petition- 
ing bodies  and  citizens  should  of  course  unite  so  far  as 
possible  upon  one  or  the  other  plan. 

In  making  her  appeal,  she  should,  however,  consider  as 
far  as  possible  the  needs  of  the  whole  state  and  the  full 
scope  of  the  subject. 

Having  gotten  right  in  the  method  of  procedure,  she 
should  then  recite  her  ills  in  chief,  the  curing  of  which  is 
blocked  by  present  constitutional  limitations,  and  then 
move  earnestly  for  amendment  or  convention  as  the  case 
may  be. 

How  then  unite  upon  a  plan? 

A  great  impediment  to  bringing  about  unanimity  of 
opinion  on  any  given  question  is  the  readiness  with  which 
the  ordinary  citizen  takes  his  impressions  for  his  opinions 
and  then  commits  himself  to  one  or  the  other  side  of  the 
question. 

In  these  complex  times  often  the  plainest  truths  are 
hidden  from  sight  by  reason  of  our  diversified  experiences, 
and  the  same  old  familiar  principles  are  frequently  not 
recognized  lying  beneath  a  very  brush  pile  of  varied  data 
and  involved  technique. 

A  law  apparently  simple  and  meritorious  may  conflict 
with  many  other  provisions  of  the  statutes  or  with  some 
clause  of  the  constitution,  wliich  is  onlv  discovered  after 


the  public  has  been  roused  up  to  agitate  it  and  it  has  been 
passed  by  the  legislature. 

The  confusion  is  thus  added  to,  and  the  law  is  either 
sustained  after  an  expensive  and  long  delayed  court  test, 
or  trimmed  down  so  as  to  effect  but  a  portion  of  the  relief 
intended,  or  held  entirely  void. 

All  this  is  waste. 

The  frequency  with  which  laws  are  declared  unconsti- 
tutional is  painful.     It  is,  in  fact,  disgraceful. 

It  may  well  be  said  that  a  law  is  not  in  force  "from  and 
after  its  passage"  or  from  and  after  the  date  provided 
for  its  taking  effect,  but  from  and  after  it  has  been  de- 
clared constitutional  at  the  end  of  a  burdensome  lawsuit. 

The  fault  is  frequently  attributable  to  the  constitution 
itself  with  its  embargo  of  useless  and  baneful  mechanical 
provisions  and  limitations.  But  in  most  instances  it  could 
be  avoided  by  pains-taking  work  and  forestudy. 

Few  bills,  or  few  bills  except  very  simple  ones,  should 
be  allowed  to  encumber  the  dockets  of  the  legislature 
without  being  accompanied  with  certificate  of  counsel  as 
to  their  validity.  Possibly  the  legislature  should  have  h 
legislative  counsel  corresponding  to  "parliamentary  coun- 
sel," an  adjunct  of  the  British  parliament.  In  most  in- 
stances a  bill  should  also  be  accompanied  with  a  report  or 
synopsis  of  the  evil  to  be  remedied  and  the  practical  bear- 
ing of  the  provisions  of  the  bill  upon  other  statutes  and  its 
relation  to  kindred  subjects,  etc.  This  might  not  be 
necessary  if  we  had  a  simple  constitution  and  were  free 
from  the  mechanical  limitations  and  directions  which  are 
the  chief  features  of  our  present  one,  and  if  our  volume 
of  statutes  were  one-third  as  great  as  it  is. 

The  constitution  makers  of  1870  recognized  certain 
then  prevalent  ills  as  grave  ones  and  tried  lO  cure  them 


by  provisions  which  they  inserted  in  that  instrument.  In 
even  many  trivial  matters  of  method  they  legislated 
sometimes  to  almost  the  merest  detail. 

The  Legislature  and  other  public  bo'dies  and  servants 
had  long  and  often  acted  dishonestly  and  extravagantly. 

The  convention  delegates  hence  had  become  accus- 
tomed to  look  upon  public  officers  as  public  enemies.  And 
having  tied  the  hands  of  such  officers  in  many  particulars 
and  laid  certain  heavy  prohibitions  upon  them,  they  re- 
tired from  their  labors  and  rubbed  their  hands  with 
almost  demoniacal  glee,  and  all  voted  the  new  constitu- 
tion "good."  ^ 

An'd  so  confident  were  they  of  the  permanent  and  stay- 
ing quality  of  their  work  that  they  attempted  to  fetter 
subsequent  generations  from  improving  upon  it,  except  by 
the  assumed  slow  process  of  amending  but  one  article 
every  twO'  years. 

Frankly  speaking,  the  legislation  of  these  men  was 
good  legislation,  in  the  main,  and  did  not  badly  suit  the 
then  condition  of  affairs.  Had  it  not  been  so  the  yoke 
would  have  galled  us  earlier  and  in  many  more  spots 
than  it  has.  But  the  trouble  is  that  many  conditions 
then  prevalent  have  changed  since,  and  none  of  such 
legislation  has. 

The  same  attitude  of  distrust  displayed  in  the  conven- 
tion has  been  habitually  assumed  by  the  Legislature  to- 
wards municipalities  and  other  public  bodies  and  agents 
as  to  which  it  has  legislated.  Laws  are  loaded  down 
with  a  lot  of  directory  provisions  and  limitations,  useless 
in  themselves,  except  temporarily  to  head  off  some  par- 
ticular form  of  vice  or  to  emphasize  in  words  what  is  a 
plain  duty  on  the  part  of  public  bodies  or  officials. 


Thus  the  Legislature  is  fettered  heavily  by  mechanics 
in  the  constitution,  and  the  Legislature  in  turn  ties  the 
hands  of  pubHc  agents  and  officers  of  its  own  creation 
with  a  volume  of  limitations  upon  methods  of  conduct 
and  procedure. 

Legislation  in  the  constitution  and  mechanics  and 
method  in  our  laws  fetter  our  energies,  load  us  down 
with  a  volume  of  complexity,  multiply  lawsuits,  and 
cause  paralysis  and  waste. 

To  this  add  the  burdens  of  partisanship,  favoritism, 
prejudices  and  class  agitations,  etc.,  and  we  can  easily 
discern  a  succession  of  finely  ribbed  sluice  gates  through 
which  trickle  tiny  streams  of  good  to  the  great  reservoir 
of  public  need. 

It  is  highly  important,  then,  that  we  agree  upon  a 
method  of  procedure  to  obtain  relief. 

To  this  end,  therefore,  the  whole  subject  should  be 
well  considered  and  each  of  the  two  available  plans  dis- 
cussed and  a  ''balance"  drawn. 

While  to  sometimes  disagree  is  natural,  yet  we  ought 
first  to  make  an  effort  to  agree.  Disagreement  after  a 
thorough  effort  to  agree  is  justified;  before  such  effort  is 
made  it  is  inexcusable  and  damaging,  and  sometimes 
baneful. 

If  the  subject  is  approached  free  from  any  hobby 
spirit  or  prejudice,  and  exhaustively  treated  and  patiently 
studied,  it  may  be  that  ai)parent  disagreement  will  melt 
away. 

In  a  report  to  the  Civic  Federation  accompanying  a 
draft  of  amendment  submitted  by  one  of  this  committee 
and  another  several  years  ago,  the  opinion  was  given 
that   the   provision   relating  to  amendments   was  not   a 


serious  menace  to  a  radical  and  prompt  constitutional 
reform  in  reference  tO'  Chicago  and  Cook  County. 
That  amendments  and  a  number  of  them  widely  di- 
vergent in  character  could  be  submitted  by  the  General 
Assembly  for  a  vote  at  one  and  the  same  time,  provided 
they  all  be  placed  under  or  purport  to  amend  but  one  ar- 
ticle; to  substantiate  this  the  case  of  Wilson  v.  Board  of 
Trustees^  133  III,  433  (the  Sanitary  District  case), 
was  cited  and  certain  observations  suggested  tO'  sustain 
the  position  taken. 

Since  this  report  was  made  several  parties  in  reports 
and  addresses  upon  the  subject  have  questioned  the 
soundness  of  this  conclusion  or  disagreed  with  it.  In  an 
address  at  a  law  club  banquet  Wallace  Heckman,  Esq., 
of  the  Chicago  Bar,  severely  criticises  it.  Speaker  Sher- 
man thinks  its  conclusions'  are  wrong,  and  a  committee 
of  the  State  Bar  Association  has  lately  made  a  report 
to  the  same  effect. 

All  of  the  advocates  of  the  "convention"  plan  admit 
that  it  should  not  be  adopted  if  an  amendment  can  ac- 
complish the  results  desired. 

They,  however,  believe  it  will  not  and  so  in  order  that 
delay  should  not  occur  by  reason  of  any  amendment  be- 
ing held  null  and  void,  they  advocate  a  convention. 

If,  however,  such  of  our  friends  can  be  convinced  that 
the  amendment  theory  is  sound  and  can  be  shown  to  be 
so,  then  clearly  an  exhaustive  effort  should  be  made  to 
prove  it  to  their  satisfaction  and  that  of  all  reasonable 
men. 

It  was  thought,  therefore,  that  economy  and  harmony 
would  be  subserved  by  a  thorough  and  exhaustive  treat- 
ment of  the  legal  scope  of  the  amendment  plan ;  and  the 
committee  submits  as  an  appendix  hereto  an  argument  in 


detail   to  sustain   the  conclusions   given,   entitled   "The 
Scope  of  Amendments  to  the  Illinois  Constitution." 

With  the  conclusions  therein  to  the  effect  that  the  form 
of  amendment  last  submitted  by  the  Federation  to  the 
Assembly  would  be  valid  if  properly  proposed  by  the 
Assembly  and  adopted  by  the  people,  the  other  two  mem- 
bers of  this  committee  agree. 

But  herein  we  seek  to  give  the  practical  considerations 
which  bear  upon  both  the  "amendment"  and  "conven- 
tion" plans,  and  to  make  some  attempt  at  impartial  con- 
clusions. 

We  are  all  seeking  to  get  constitutional  reform ;  we 
desire  the  best,  safest  and  speediest  method;  to  find  this 
the  subject  should  be  studied  as  a  scientific  or  objective 
question  is  studied.  To  "take  sides"  for  the  mere  sake 
of  holding  to  a  prior  impression  or  opinion  or  of  working 
up  a  fight  and  having  something  to  "champion"  is  mis- 
chievous and  undignified.  If  persisted  in  it  becomes 
childish  and  futile. 

The  first  and  chief  question  is :  Would  an  amendment 
sufficiently  comprehensive  and  broad  enough  in  scope  to 
afford  full  relief  for  Chicago  be  a  valid  one?  This  is  a 
purely  legal  question,  and,  as  said  above,  it  was  thought 
that  the  arguments  and  opinions  thereon  would  be  better 
placed  in  a  separate  document.  The  principal  conclu- 
sions deduced  from  the  said  argument  in  extenso  are, 
however,  in  place  here,  and  we  give  the  following : 

I.  The  only  limitation  uix)n  amendments  which  may 
be  proposed  by  the  legislature  at  one  session  and  voted 
upon  by  the  people  at  one  time  is  that  they  shall  purport 
to  amend  {or  change  in  form)  but  one  article  of  the  con- 
stitution. 


8 

2.  The  amendment  submitted  to  the  assembly  by  the 
Civic  Federation  in  form  as  annexed  to  the  appendix 
hereto  and  purporting  to  amend  Article  X,  ^'Counties/' 
if  properly  proposed  by  the  assembly  and  adopted  by  the 
people  would  be  valid. 

3.  Or  such  an  amendment  could  be  added  as  a  "sepa- 
rate section"  of  the  constitution  with  no'  danger  of  its 
being  held  void;  or 

4.  It  could  be  inserted  in  the  "Schedule"  with  equal 
safety  (although  it  would  be  oddly  placed  in  such  a 
case)  ;  or 

5.  It  could  as  well  be  embraced  under  a  separate 
article. 

We  have  every  confidence  that  these  conclusions  are 
sound.  Yet  upon  a  matter  as  vital  as  this,  we 
should  be  both  careful  and  conservative.  And  therefore 
we  propose  that  the  said  arguments  and  conclusions 
should  have  the  test  of  study  and  careful  scrutiny  by  some 
of  the  ablest  of  our  Chicago  lawyers  in  order  that  the 
course  which  may  be  adopted  will  be  pursued  in  the  con- 
fidence that  it  will  not  be  void  of  ultimate  results.  To 
this  end  we  have  submitted  them  to  Judge  Simeon  P. 
Shope,  formerly  of  the  Supreme  Court  of  Illinois,  now 
of  the  Chicago  bar,  Judge  George  W.  Wall,  for  many 
years  justice  of  the  Appellate  Court  for  the  Fourth  Dis- 
trict, and  a  member  of  the  constitutional  convention  of 
1870  as  well  as  that  of  1863,  and  who  is  now  practicing 
law  in  Chicago,  Thomas  A.  Moran,  John  J.  Herrick, 
Chas.  H.  Aldrich,  John  S.  Miller  and  James  DeWitt 
Andrews  (the  law  writer),  Esqrs.,  all  of  the  Chicago 
bar.  Their  answers,  when  received,  v/ill  be  submitted 
to  the  Federation. 

It  is  said  in  the  appendix  hereto  (p.  53)  : 


"The  annexed  draft  of  amendment  is  the  one  last  of- 
fered in  the  Assembly  in  1891. 

"We  concede  that  it  has  too  much  'mechanics'   in  it. 

"But  these  were  dictated  by  the  influences  and  condi- 
tions with  which  the  Federation  was  beset,  and  accepted 
under  protest.  We  hope  that  some  of  these  may  finally 
he  dropped ;  and  that  a  new  and  simpler  draft  embody- 
ing the  main  features  be  submitted. 

"But  for  the  purpose  of  testing  the  specific  question  of 
whether  or  not  varied  or  complex  provisions  can  be 
validly  placed  in  amendments  submitted  at  one  session 
the  said  annexed  draft  is  probably  as  good  as  any 
other." 

We  adopt  this  suggestion  and  make  now  no  recom- 
mendation as  to  the  form  of  amendment ;  and  hope  the 
one  to  be  adopted  will  be  much  simpler  than  the  former 
one. 

There  is  recourse  also  to  another  plan  of  obtaining  con- 
vincing and  authoritative  assent  to  our  conclusions,  set 
forth  in  the  appendix;  and  this  should  possibly  be  pur- 
sued if  the  conclusions  of  the  examining  counsel  should 
not  be  uniform  and  emphatic. 

Some  state  constitutions  provide  for  opinions  to  be 
given  by  the  supreme  court  of  the  state  to  the  legislature 
upon  its  formal  request,  as  to  the  constitutionality  vel  non 
of  certain  measures  which  it  is  proposed  to  pass  or  which 
may  be  held  under  serious  consideration  by  the  legisla- 
ture. Such  opinions  have  frequently  been  given  by  such 
tribunals,  usually  with  the  caution  that  the  court  means 
to  act  only  in  an  advisory  capacity,  and  reserves  the  privi- 
lege to  decide  differently  if  the  proi)osed  measure  should 
become  a  law  and  upon  an  actual  test  the  court  should  be 
convinced  that  the  advisory  opinion  were  wrong.     Fre- 


lO 

quently  a  law  in  its  actual  working  will  display  defects 
not  anticipated  before  its  passage.  And  in  a  mere  ques- 
tion thus  put,  the  court  has  not  the  benefit  of  counsel  on 
the  two  sides  of  the  case. 

But  in  a  case  like  the  present  one  no  reason  is  per- 
ceived why  a  court  could  not  as  easily  pass  upon  the  le- 
gality of  such  a  provision  before  the  legislature  passed  it 
as  afterwards.  If  it  were  passed  and  voted  upon  by  the 
people,  it  would  in  all  probability  be  tested  before  it  were 
actually  put  into  effect.  So  the  court  would  be  as  well 
fixed  to  deliberately  pass  upon  the  question  at  one  time  as 
another.  In  such  case,  as  in  others,  an  advisory  opinion 
only  could  be  asked  for,  but  it  would  be  all  that  could  be 
desired,  and  would  fully  serve  our  purpose. 

And  as  to  the  assistance  of  the  counsel,  the  court  could 
appoint  counsel  to  represent  each  side  of  the  question,  and 
thus  have  the  benefit  of  full  argument. 

Our  constitution  does  not  have  a  provision  of  the  ex- 
act nature  above  mentioned.  But  it  does  contain  the  fol- 
lowing : 

''All  judges  of  courts  of  record,  inferior  tO'  the 
Supreme  Court,  shall,  on  or  before  the  first  day  of 
June,  of  each  year,  report  in  writing  tO'  the  judges 
of  the  Supreme  Court  such  defects  and  omissions 
in  the  laws  as  their  experience  may  suggest ;  and  the 
judges  of  the  Supreme  Court  shall,  on  or  before  the 
first  day  of  January  of  each  year,  report  in  writing 
to  the  governor  such  defects  and  omissions  in  the 
constitution  and  laws  as  they  may  find  to  exist,  to- 
gether with  appropriate  forms  of  bills  to  cure  such 
defects  and  omissions  in  the  laws." 

This  mandate  has  hardly  ever,  if  at  all,  been  observed; 
the  court  has  usually  been  overburdened  in  handling  the 
specific  cases  submitted  to  it  in  the  usual  way ;  and  there 
may  be  other  reasons  why  they  have  not  seen  fit  tO'  act  in 
such  advisory  capacity. 


II 

In  a  case  as  important  as  the  present  one,  however,  it 
is  not  perceived  why  the  court  would  not  in  this  instance 
advise  the  governor  as  to  the  scope  of  the  said  amend- 
atory provision  or  the  validity  of  the  proposed  amend- 
ment;  he  in  turn  to  transmit  the  opinion  to  the  legis- 
lature. 

This  could  be  done  on  the  court's  own  motion  upon  be- 
ing prompted  thereto  by  Chicago's  petitions  therefor  in 
the  most  informal  way.  Or  a  motion  could  be  made  for 
leave  to  file  in  court  a  petition  therefor,  and  if  agreeable 
to  the  court,  counsel  could  be  appointed  to  argue  the  mat- 
ter and  a  time  set  therefor. 

The  object  of  such  a  procedure  would  be  to  save  call- 
ing a  constitutional  convention,  which  would  occasion  a 
prolonged  and  thorough  agitation  of  the  whole  state,  and 
the  expense  of  a  special  state  election,  together  with  the 
usual  general  public  expense  and  inconvenience  which 
go  with  it;  and  such  an  object  is  sufficiently  momentous 
and  exceptional  to  invite  the  help  of  any  of  the  state's 
constituted  bodies  in  subserving  it. 

We  suggest,  therefore,  that  in  case  there  continues  any 
well-defined  divergence  of  views  as  to  the  legality  of  an 
amendment  of  the  kind  heretofore  proposed  by  this  body, 
steps  should  be  taken  to  get  the  opinion  of  the  Supreme 
Court  judges  upon  the  question  for  the  legislature. 

Or.  if  deemed  advisable  these  same  proceedings  could 
be  first  taken  in  our  local  Circuit  or  Superior  Court,  to 
be  heard  by  one  of  its  ablest  judges,  or  by  three  or  five 
of  such  judges  and  their  conclusion  submitted  by  way  of 
formal  suggestion  to  the  upper  court  judges. 

In  case  the  Sui)reme  Court  should  sustain  the  opinion 
and  conclusions  furnished  the  Federation,  the  most  cau- 
tious and  timid  would  be  quieted  and  appeased. 


12 

We  must,  however,  remember  that  in  these  times  there 
are  a  vast  number  of  hastily  formed  or  "street"  opinions 
afloat  upon  all  important  questions.  Almost  every  vital 
legal  issue  is  more  or  less  confused  by  them.  But  we 
would  scarcely  ever  get  substantial  or  definite  reform  if 
we  hesitated  in  any  given  course  of  action  because  of 
them. 

The  public's  business  is  still  habitually  treated  by 
the  average  individual  as  secondary.  Matters  of 
purely  legal  or  technical  nature,  and  of  most 
vital  import,  are  treated  with  amazing  deftness 
and  speed  at  banquets,  social  conferences  and  mass  meet- 
ings. Lawyers,  and  those  who  are  not  lawyers,  and 
patriots  of  all  classes,  will  venture  and  publish  an  opin- 
ion upon  the  legal  phases  of  Chicago's  consolidation  plan, 
and  the  scope  of  constitutional  amendments,  etc.,  who  will 
not  take  the  time  to  read  the  constitution  or  one-tenth  of 
it  or  to  read  a  specially  prepared  opinion  and  report  upon 
the  subject.  Some  time  last  spring  a  leading  morn- 
ing paper  published  the  legal  opinions  of  a  dozen  members 
of  the  Chicago  Real  Estate  Board  upon  the  question 
whether  or  not  the  necessary  relief  could  be  embraced  in 
one  amendment  to  the  Constitution ! 

When  the  Federation  proposed  the  ''township  evils"  bill 
at  the  last  session  of  the  assembly,  a  printed  report  made 
by  the  drafters  of  the  bill,  explaining  its  scope  an'd  re- 
ferring tO'  decisions  to  prove  its  validity  was  handed  each 
member  of  the  said  body.  The  report  was  but  nine  pages 
long,  but  had  cost  several  weeks  of  closely  applied  labor. 
There  were,  however,  nine  attempts  by  various  members 
to  amend  the  bill  or  substitute  others  in  its  stead.  At 
least  five  of  these  were  unconstitutional  for  reasons  spe- 
cifically pointed  out  in  said  report.  They  were  all  after 
much  confusion  and  persistent  work  gotten  rid  of.     But 


13 

the  hardest  task  of  all  was  to  persuade  the  parties  furnish- 
ing made-over-night  drafts  of  amendments  or  substi- 
tutes to  read  the  report,  or  look  at  tlic  decisions  affecting 
Ihem. 

Legions  of  banqueters  met  several  years  ago  to  dis- 
cuss Chicago's  legislative  needs  and  "resolve"  in  respect 
thereto;  yet  when  the  amendment  was  pending  before  the 
assembly,  and  the  township  and  consolidation  bills,  as 
well,  half  a  "baker's  dozen"  of  citizens  could  not  be  per- 
suaded to  go  to  Springfield  to  urge  the  passage  of  such 
bills. 

Good  work  even  in  days  of  simple  constitutions,  and 
fewer  laws,  was  never  done  easily;  and  in  these  complex 
times  the  same  truth  is  more  apparent  than  ever.  And 
the  time  is  at  hand  when  our  patriots  should  all  discover 
that  there  is  some  comfort  in  working  in  quiet  for  one's 
community,  and  out  of  the  glare  of  the  footlights  and 
public  prints;  that  time  and  skill  are  vital  to  perfecting 
its  systems  of  law  and  economy ;  that  the  charm  in  such 
service  lies  more  in  its  accuracy  than  in  its  earnestness. 

If  in  handling  such  grave  and  important  matters  we 
can  get  rid  of  banquet  opinions  and  mass  meeting  skill, 
not  the  least  of  our  burdens  will  be  rolled  awav. 


There  is  a  well  defined  tendency  upon  the  part  of  many 
to  look  upon  a  constitutional  convention  as  a  natural  and 
logically  periodical  event.  The  seriousness  of  the  thing 
'<i  not  easily  comprehended.  V(Uir  average  lawyer,  or 
well-read  business  man.  takes  up  the  constitution  and 
reads  it  through  or  scans  it  over.  Seeing  here  and  there 
unnecessary  and  hampering  provisions,  and  adding  the 
result  of  his  cursory  examination  to  his  experience  with 
public  affairs   and  his  impressions  formed  from  speeches 


14 

and  newspaper  agitation,  he  schedules  such  parts  of  said 
instrument  as  he  thinks  needs  changes.  In  most  instances 
he  probably  does  not  even  hastily  read  the  constitution 
through,  a  thing,  which  on  account  of  the  inordinate 
length  of  said  instrument,  could  well  be  excused  under 
other  circumstances.  Whatever  the  methods  or  source  of 
his  impressions,  however,  he  views  the  project  of  chang- 
ing the  constitution  as  quite  a  simple  matter ;  and  at  once 
a  conceit  springs  up  within  him  that  he  can,  as  with 
chalk  and  scissors,  mark  off  its  tuberous  or  unseemly  pro- 
jections, and  clip  down  to  a  perfect  pattern. 
But  such  citizen  must  be  w^arned. 

In  the  first  place  he  might  not  be  content  to  lop  off  awk- 
ward features  and  let  the  perfect  pattern  remain.  Even 
the  State  Bar  Association  committee,  who  supposedly  ex- 
pended considerable  time  upon  this  subject,  is  not  con- 
tent with  specifying  many  faults  of  the  constitution  and 
doing  it  well,  but  it  follows  many  of  them  with  suggested 
planks  for  insertion  in  the  constitution.  These  would  be 
just  as  much  out  of  place  in  that  document  as  the  ones 
criticized.  They  would  be  just  as  decidedly  'legislation" 
or  ''mechanics."  After  recommending  that  all  judges 
should  be  required  by  the  constitution  to  be  "learned  in 
the  law,"  and  several  other  useless  or  barren  provisions, 
it  mentions  several  of  what  it  is  pleased  to  call  "affirma- 
tive governmental  principles,"  to^  be  inserted  therein. 
One  of  these  is,  "that  civil  service  should  be  extended 
by  constitutional  provision  to  the  subordinate  positions 
in  all  state  and  county  offices  and  institutions,  and  should 
be  made  compulsory  instead  of  optional,  as  applied  to  the 
cities  of  the  state." 

A  declaration  in  the  constitution  that  merit  alone  is  tO' 
control  in  the  appointment  to  public  service  would  not  be 


IS 

nut  of  place.  It  is  a  reproach  to  American  citizenship 
that  such  a  thing  should  be  necessary.  If,  however,  it 
will  help  to  open  the  eyes  of  the  American  people  to  the 
simple  fact  so  persistently  ignored  that  they  cannot  serve 
two  masters,  viz. :  the  party  and  the  state,  or  that  prac- 
ticed favoritism  is  a  draft  upon  the  lifeblood  of  the  state, 
or  to  other  cardinal  truths  to  which  the  public  are  blind, 
it  would  be  a  good  thing. 

But  a  provision  compelling  the  use  of  civil  service 
boards  in  all  subsidiary  departments  of  all  state,  cities  and 
institutions  would  be  out  of  place  in  the  constitution  and 
might  become  a  pernicious  thing. 

The  civil  service  principle  is  correct.  But  had  we  in 
public  office  a  pervading  spirit  of  honesty  and  rigorous 
absolution  from  the  curse  of  partisanship  and  favoritism, 
civil  service  hoards  would  be  a  useless  and  cumbersome 
annex  to  our  municipal  departments.  They  are  a  defen- 
sive institution ;  needed  now  to  preserve  us  against  ef- 
fects of  prevalent  vices.  Any  one  who  works  against 
them  earns  a  well  founded  suspicion  of  having  personal 
or  other  unhealthy  motives.  But  when  efficiency  in  pub- 
lic service  shall  be  the  rule,  and  we  shall  have  ceased  to 
house  the  senseless  arch-fiend  of  ''partisanship,"  such 
boards  may  not  be  needed  any  more  than  they  are  needed 
in  a  well  organized  army.  One  who  should  predict  that 
this  day  is  soon  at  hand  would  be  thought  bold  and  reck- 
lessly optimistic.  But  one  who  would  do  that  which 
would  necessitate  a  state  election  to  dispense  with  such 
bodies  if  and  when  they  shall  have  become  a  useless 
encumbrance,  could  not  be  called  a  constitution  maker. 

Then,  again,  your  citizen  of  the  chalk  and  scissors  skill 
must  recollect  that  many  of  his  suggested  reforms  prob- 
ably have  not  the  merit  which  he  seepis  to  see  in  them. 
He  will  find  that  many  of  them  are  not  new.    And  should 


i6 


he  take  the  trouble  to  glance  over  old  constitutional  de- 
bates, he  may  find  some  of  them  well  discussed  and  re- 
jected for  valid  reasons  which  never  occurred  to  him. 
Others,  he  will  find,  have  been  tried  in  this  or  other 
states  and  abandoned. 

When  he  comes  up  against  others  as  competent  as  he 
in  the  arena  of  convention  debate,  he  will  find  his  appar- 
ently simple  subject  to  have  far  wider  ramifications  than 
he  ever  dreamed  of;  and  unless  born  of  the  obstinacy  of 
the  marplot  and  obstructionist,  he  will  find  himself  at  sea 
in  striking  balances,  pro  and  con  his  petted  measures 
and  his  mentally  fathered  system  will  look  sadly  marred. 

Said  Mr.  James  Bryce,  in  commenting  upon  the  success 
of  the  Federal  Constitution,  it  proves  the  rule  "that 
everything  which  has  power  to  win  the  obedience  and  re- 
spect of  men  must  have  its  roots  deep  in  the  past." 

Said  the  master  historian,  Hume  :  "To  balance  a  large 
state  or  society  on  general  laws  is  a  work  of  so  great  diffi- 
culty that  no  human  genius,  however  comprehensive,  is 
able  by  the  mere  dint  of  reason  or  reflection  to  effect  it." 

Then,  even  if  the  ideas  of  our  aforesaid  citizen  should 
perchance  be  sound  in  toto,  he  must  recollect  that  his 
chance  of  getting  them  accepted  by  a  body  of  men,  con- 
siderable in  numbers,  would  be  remote  indeed.  And  he 
would  not,  of  course,  expect  that  the  work  would  be  dele- 
gated to  him  alone. 

The  result  of  such  a  body  is  largely  that  of  compro- 
mises. The  men  who  so  readily  have  urged  the  calling  of 
a  convention,  might  be  interested  to  glance  over  the  de- 
bates of  the  convention  of  1870.  No  one  believes  that  it 
would  now  be  possible  to  get  a  better  body  of  men  to- 
gether for  such  a  purpose.  We  think  the  chances  to 
equal  it  very  "slim"  indeed. 


17 

Yet,  that  body  was  swayed  and  racked  and  confused 
many  times  by  internal  dissentions.  It  was  subject  re- 
peatedly to  spasmodical  pressure  from  without,  and  was 
deluged  with  petitions  and  delegations  from  nearly  all 
classes  and  interests  throughout  the  state.  Several  times 
the  conventions  was  on  the  point  of  breaking  up  in  de- 
spair, as  quite  a  few  similar  bodies  have  done  in  other 
states. 

If  one  peruses  the  proceedings  of  that  body,  he  will  not 
wonder  why  it  is  that  surviving  members  thereof  so  uni- 
formly deprecate  the  calling  of  another  convention. 

Said  Mr.  Webster,  in  the  Massachusetts  convention  of 
1820,  which  simply  amended  the  then  existing  constitu- 
tion, opposing  the  adoption  of  a  provision  for  calling  a 
future  convention : 

**\\'ith  the  experience  we  have  had  with  the  Con- 
stitution, there  is  little  probability  that,  after  the 
amendments  which  shall  now  be  adopted,  there  will 
be  any  occasion  for  great  changes.  No  revision  of 
its  general  principles  will  be  necessary,  and  the  alter- 
ations which  shall  be  called  for  by  a  change  of  cir- 
cumstances will  be  limited  and  specific." 

The  Illinois  Constitution  needs  more  than  "limited  and 
specific"  amendments.  But  by  far  the  most  important 
part  of  it  is  its  general  principles.  And  no  matter  how 
much  "mechanics"  it  is  burdened  with,  the  natural  and 
conservative  plan  of  procedure  is  to  hold  to  what  is  vital 
while  lopping  off  the  deadwood,  whether  we  hew  with 
vigorous  and  frequent,  or  only  light  and  occasional  blows. 

The  men  l>est  fitted  to  !x*  entrusted  with  this  important 
work,  are  the  men  who  will  approach  it  most  cautiously, 
and  take  no  more  responsibility  than  the  occasion  de- 
mands. 

This  kind  of  work  should  be  deliberate  and  painstak- 
ing.    Debates,  even  !)y  the  best  lawyers  and  thinkers,  is 


i8 

not  enough.  It  is  a  valuable  method  when  preceded  by 
painstaking  investigation,  by  the  methodical  collection  of 
data  and  items  of  experience,  by  suggested  drafts  in  pur- 
suance thereof,  and  by  printed  arguments  covering  the 
natural  scope  of  the  subject. 

The  natural  and  economic  method  for  amending  the 
constitution  of  Illinois  is  the  "commission"  plan,  which 
usually  adopts  these  methods.  Such  bodies  have  been 
employed  in  a  number  of  instances  within  the  last  thirty 
years  by  various  states.  The  personnel  of  such  commis- 
sions has  usually  been  high,  indeed,  and  their  work  of  an 
equally  high  and  excellent  order.  In  several  instances 
their  work  extended  to  reconstructing  the  constitutions, 
and  was  not  accepted  without  material  changes.  But  this 
was  the  fault  not  of  the  work  itself,  but  principally  of  the 
narrow  and  partisan  spirit  which  pervaded  the  assemblies 
receiving  the  reports. 

Jameson  recommends  the  plan  of  a  commission  as 
peculiarly  adapted  tO'  ''amendment"  projects,  the  commis- 
sion to  frame  its  amendments  and  to  submit  them  to  the 
assembly,  and  the  assembly  to  propose  them  to  the  people 
to  be  voted  on  separately. 

Were  the  subject  of  constitutional  relief  for  Chicago, 
or  rather  the  drafting  of  measures  therefor,  a  compara- 
tively new  one,  we  should  probably  have  tO'  sub- 
mit to  the  commission  plan  here ;  and  in  fact  possibly  ask 
for  its  adoption.  But  said  subject  is  not  new.  Chicago 
has  suffered  from  the  present  constitution  from  the  very 
time  it  was  adopted.  The  justice  and  constable  evil  was 
prevalent  then  (though  not  so  extensively)  as  it  is  now. 
Il  has  suffered  from  the  township  evil  from  the  very 
"start,"  so  much  so  that  as  early  as  1874  a  well  defined 
agitation  for  their  abolishment  sprung  up,  and  several 


19 

prominent  lawyers  framed  up  legal  opinions  in  respect 
thereto. 

So  far  as  Cook  County  was  concerned,  its  chief  feature 
was  an  attempt  to  regulate  by  inexorable  code  at  once  the 
metropolis  and  the  swamp;  and  at  no  time  has  the  gar- 
ment fitted  even  imperfectly  the  municipal  corpus  of  the 
local  public.  Suggestions  and  counter-suggestions, 
communications,  resolutions,  editorials,  reports  of  city 
and  county  officials  and  departments,  committees  of 
clubs  and  bar  associations  and  pamphlets  galore  have  for 
nearly  thirty  years  last  past  been  turned  out  and  eagerly 
canvassed  by  a  public  burdened  and  therefore  interested. 

With  a  view  of  placing  all  this  thought  and  labor  to 
account,  the  Civic  Federation,  some  four  or  five  years  ago 
appointed  its  Consolidation  Committee  of  one  hundred 
from  the  various  organizations  and  interested  bodies,  to 
consider  and  frame  a  constitutional  amendment.  This 
committee,  of  which  Judge  Tuley  was  chairman,  and  its 
sub-committees  had  frequent  meetings  and  did  much  hard 
work.  The  result  of  their  labor  was  an  amendment  which 
professedly  was  not  fully  satisfactory  to  them,  but  was 
at  the  time  deemed  to  be  the  best  that  the  various  interests 
would  be  likely  to  agree  upon,  and  to  go  as  far  in  the  way 
of  relief  as  one  amendment  could  go.  The  amendment 
was  submitted  to  the  legislature  of  1899,  but 
the  resolution  for  its  submission  failed  to  pass. 
It  was  upon  further  consideration  of  said  com- 
mittee abandoned,  and  a  new  sub-committee  ap- 
pointed to  draft  a  new  amendment  and  report 
thereon.  Such  new  draft,  accompanied  by  a  report,  en- 
titled "Constitutional  Changes  in  Cook  County,"  was 
drawn  and  submitted  and  after  further  scrutiny  by  said 
committee  and  some  changes  therein  was  adopted  and 
submitted  to  the  legislature.    Up<:)n  objection  at  the  hear- 


20 

ing  in  committee,  made  by  certain  parties  from  the  ''out- 
side towns"  the  amendment  was  further  changed  in  sev- 
eral respects,  and  a  ''substitute"  amendment  prepared  in 
committee  embodying  such  chances.  It  was  then  "re- 
ported out,"  but  for  causes  mentioned  elsewhere  did  not 
come  to  a  vote. 

If  this  amendment  as  originally  offered  in  the  As- 
sembly, or  the  "substitute"  therefor,  or  a  new  one  to  be 
drafted  improving  thereupon  be  adopted  by  this  body  and 
others  acting  in  conjunction  with  it,  and  a  report  accom- 
pany it,  explaining  the  scope  of  such  proposed  amend- 
ments, and  proving  its  various  features  and  its  merit, 
and  these  be  approved  by  the  public  and  voluntary 
agencies  in  Chicago  who  have  seriously  studied  the  ques- 
tion and  been  interested  in  it,  and  the  work  shall  have 
been  done  thoroughly — a  commission  for  such  purpose 
will  be  unnecessary  and  superfluous. 

In  such  case  the  work  of  a  commission  will  have  been 
performed  in  advance,  and  by  the  same  means  and 
methods  usual  to  such  a  body. 

So  far  as  constitutional  amendments  applicable  to  the 
whole  state  are  concerned,  if  there  be  any  considerable 
demand  for  changes,  as  there  seems  to  be,  it  seems  to  us 
that  a  small,  able  and  hard-working  commission  should 
be  appointed  by  the  legislature  to  report  upon  such 
changes  as  it  shall  deem  advisable. 

Or.  if  the  State  Bar  Association,  or  some  other  com- 
petent organization  or  agency  will  seriously  undertake 
the  work,  and  appoint  a  committee  therefor,  and  give  the 
result  of  its  effort  in  the  way  of  suggestion  to  the  legis- 
lature, a  great  impetus  would  be  given  the  movement  for 
such  needed  relief. 

But  Chicago's  ills  are  peculiar  to  herself,  and  there  is 


21 

no  reason  for  requiring  her  to  wait  until  matters  are  ad- 
justed which  affect  her  only  as  one  of  the  constituent 
communities  of  the  state.  Her  relief  must,  in  the  nature 
()f  things,  come  soon.  It  is  conceded  throughout  the 
state  that  hers  is  the  sorest  spot  upon  the  body  of  the 
state;  and  if  so,  it  is  but  right  that  she  have  the  first 
attention. 

In  cl'->sing  this  j)art  of  the  subject,  we  have  to  say 
lastly,  that  if  perchance  the  legal  opinion  furnished  here- 
with (affirming  that  the  amendment  plan  is  feasible,  that 
"amendments  proposed  at  one  session"  can  validly  be 
made  wide  enough  in  scope,  etc.),  be  not  accepted  as 
sound  or  sustained  upon  a  test,  we  favor  the  plan  of  first 
repealing  that  portion  of  the  amendment  article  of  the 
constitution  which  relates  to  the  one-article-at-a-time 
limitation,  before  passing  any  other  amendments. 

It  would  be  far  better  to  get  full  ''constitutional"  relief 
in  lour  or  five  years,  than  either  to  accept  the  slim,  dis- 
jointed provisions  which  we  could  possibly  have  passed 
biennially,  or  to  call  a  convention  and  throw  our  whole 
constitution  into  hotch-potch.     Yes,  far  better. 

We  do  not  know  how  this  will  strike  the  average 
friend,  impatient  as  he  justly  is  to  see  the  needed  changes 
consummated. 

But  a  long  wait  rather  than  take  such  a  serious  and 
unnatural  step  is.  in  our  judgment,  a  far  lesser  evil. 

Chicago  could  lend  her  energies  towards  assuring  the 
submission  of  the  repealing  clause  by  the  next  assembly, 
and.  if  the  same  were  propi^^sed  by  that  Ixxly.  towards 
getting  out  the  vote  of  the  people  thereon,  in  order  that  a 
favorable  vote  should  be  assured,  and  hence  that  no  time 
would  be  lost  in  removing  the  chief  ban  of  progress  along 
this  line. 


22 

Immediately  after  the  adoption  by  the  people  of  this 
repealing  amendment  (which  might  provide  for  a  special 
election  of  the  people  to  pass  on  further  amendments),  a 
special  session  of  the  assembly  could  be  called  for  the 
purpose  of  proposing  such  Chicago  amendments  as  were 
deemed  necessary.  These  could  be  submitted  by  the 
assembly  to  the  people  at  a  special  election  to  be  called 
immediately  afterwards.  At  this  same  session  of  the 
assembly  all  needed  legislation  could  be  passed  to  go  into 
effect  in  the  contingency  (probably  well  assured)  that  the 
proposed  constitutional  amendments  be  adopted. 
Or,  if  there  were  legal  impediments  in  the  way  of  this 
(and  none  such  occur  to  us),  they  could  be  made,  as  they 
probably  would  be,  to  depend  upon  a  vote  at  the  next  city 
or  county  election,  as  the  case  might  be.  If  by  chance 
the  amendments  had  prior  to  such  election  failed  to  pass 
upon  the  state  vote,  the  so-called  local  measures  could 
then  be  voted  down  by  the  people  affected  by  them;  or 
the  local  officers  could  decline  to  call  the  local  election 
because  of  a  total  failure  of  its  object. 

If  either  of  these  two  latter  plans  for  speeding  legis- 
lation were  not  adopted,  a  special  session  could  be  called 
immediately  after  the  adoption  of  the  Chicago  consti- 
tutional amendments  for  the  purpose  of  supplementing 
these  with  the  necessary  legislation. 

If  it  be  said  that  these  special  sessions  are  costly,  and 
that  the  state  might  be  reluctant  to  so  use  the  funds 
necessary  therefor,  it  can  be  answered  that  there  ought 
to  be  some  way  to  demonstrate  to  her  legislature  that 
giving  early  and  quick  relief  to  one-third  of  her 
citizens  would  be  one  of  the  best  investments  she  could 
make.  And  Chicago  should  have  enough  liberal-minded 
able  citizens  to  pay  a  part  of  this  expense,  or,  rather  than 
let  its  whole  scheme  fail,  the  whole  of  it. 


23 

Under  this  plan  three  years  ought  to  mark  the  limit 
for  witnessing  the  desired  changes  as  a  consummated 
fact. 

If  forced  to  adopt  this  method,  the  work  of  framing 
the  bills  for  required  legislation  should  not  wait  until 
after  the  voting  upon  the  constitutional  amend- 
ments required,  but  should  be  taken  up  early 
and  diligently  pushed  to  fruition.  The  most  thor- 
ough arguments  in  favor  of  the  frame  of  bills 
suggested  should  accompany  them.  These,  and  with  all 
the  necessary  data,  etc.,  should  be  sent  in  advance  of  the 
special  session  to  each  member  of  the  legislature  with 
special  appeals  for  their  perusal,  so  that  when  the  assem- 
bly met  the  groundwork  for  early,  yet  thorough,  con- 
sideration and  prompt  action  will  have  been  laid. 

To  summarize  the  steps  to  be  taken  under  such  a 
plan 

1st.  Repeal  that  part  of  the  amendatory  article  of  the 
constitution  which  forbids  more  than  "one  article" 
amendment  at  the  same  session,  and  provide  in  such  re- 
pealing amendment  for  permitting  a  special  state  election 
en  constitutional  amendments. 

This  change  could  be  accomplished  at  the  election  for 
members  of  the  assembly  in  November,  1904. 

2d.  The  legislature  at  its  session  in  January,  1905. 
could  submit  to  the  people  all  enabling  amendments 
deemed  advisable,  and  call  for  a  special  election  there- 
upon in  the  early  part  of  1905. 

3d.  The  assembly  could  at  that  same  session  (viz.: 
January,  1905,)  pass  all  needed  Chicago  legislation,  to 
go  into  effect  in  case  the  enabling  constitutional  amend- 
ments should  pass,  or  to  be  voted  on  by  the  people  of 
the  district  affected  after  the  date  of  the  said  state  elec- 


24 

tion;  or  the  assembly  could,  after  submitting  the  consti- 
tutional amendment,  take  a  recess  until  after  the  state 
election,  and  then  pass  the  requisite  ''consolidation"  or 
"charter"  provisions  to  be  submitted  to  the  legal  voters 
in  the  early  fall  of  1905. 

If  this  second  plan  were  promptly  and  successfully 
pursued  the  fall  of  1905  would  witness  as  consummated 
the  local  legislation  desired.  Under  the  first  and  present 
plan  it  will  take  until  that  time.  But  the  other  will 
take  one  more  state  election,  and  that  a  special  one,  and 
two  contests  in  the  legislature  instead  of  one  and  much 
more  inconvenience  to  all  concerned. 

This  plan  of  first  repealing  the  present  amendment 
provision,  before  adopting  any  Chicago  enabling  amend- 
ments, so-called,  is  thus  outlined  here  only  for  the  pur- 
pose of  rounding  out  the  subject  in  hand.  It  is  not  be- 
lieved that  there  is  enough  doubt  about  the  first  and 
former  plan  being  valid  to  render  a  resort  to  it  probable. 
Such  plan,  if  deliberate  and  studied  opinion  upon 
its  validity  be  conflicting,  could  be  tested  in  the  Supreme 
Court  at  its  session  in  the  coming  February,  and  if  it 
failed  under  the  judicial  scrutiny  of  that  body,  the  plan 
herein  secondly  outlined  could  still  be  initiated  and 
adopted  during  the  then  session  of  the  assembly. 

In  any  event,  the  necessity  of  a  state  convention  is  thus 
reduced  to  a  ridiculous  minimum. 


What  changes  in  the  present  constitution  are  necessary 
and  advisable? 

From  the  report  of  the  State  Bar  Association,  Speaker 
Sherman's  address  to  the  Real  Estate  Board,  the  report 
of  Ex-President  Healey  of  the  County  Board,  the 
memorial  of  the  City  Council  addressed  to  the  legislature 


25 

in  1901  and  one  or  two  other  suggestions  in  the  public 
prints,  we  collect  the  following  as  advocated  changes : 

1.  The  abolition  of  what  remains  of  the  township 
government  in  Chicago  and  other  cities  in  the  state.  (The 
law^  passed  at  the  last  legislature  and  in  force  now  does 
not  entirely  do  away  with  them,  but  goes  as  far  as  the 
present  constitution  allows  and  is  aimed  to  reduce  the 
erstwhile  township  evils  to  a  minimum.  Most  or  all  of 
what  is  left  of  such  townships  is,  however,  a  useless  en- 
cumbrance. ) 

2.  The  abolition  of  justices  and  constables  in  the  City 
of  Chicago  and  allowing  the  substitution  therefor  of  local 
district  courts. 

3.  Radical  changes  in  the  revenue  provisions,  such 
as 

(a)  Raising  the  debt  limit  of  the  City  of  Chi- 
cago so  as  to  permit  local  improvements  to  be  made 
from  the  general  fund,  and  provide  for  the  con- 
struction of  bridges  and  other  extensive  public 
works,  and  to  remove  thereby  one  of  the  chief  prac- 
tical obstacles  to  consolidation. 

(b)  Extension  of  time  allowed  on  municipal 
bond  issues  from  twenty  to  fifty  years. 

(c)  Doing  away  with  the  State  Board  of  Equal- 
ization and  allowing  state  taxes  to  be  raised  and 
apportioned  amongst  various  local  municipalities  in 
proportion  to  the  revenue  which  they  raise  for  local 
purposes;  or  allowing  other  new  methods  of  appor- 
tioning state  taxes. 

4.  The  consolidation  of  all  local  municipalities  in  Chi- 
cago retaining  the  county  government  only  for  court  pur- 
poses and  the  execution  of  process  by  the  sheriff 

5.  Allowing  Chicago  to  frame  her  own  charter. 

putes. 

6.  Providing  for  compulsory  arbitration  of  labor  dis- 


26  / 

7-  Providing  for  the  ownership  and  operation  of  pul>- 
lic  utilities  by  local  municipal  corporations. 

8.  Revision  of  the  article  on  judiciary,  such  as 

(a)  Abolishment  of  Appellate  Courts  and  chang- 
ing the  jurisdiction  of  the  Supreme  Court  and  allow- 
ing its  division  into  different  departments,  such  as 
law,  equity  and  criminal,  allowing  thus  but  one  ap- 
peal. 

(b)  Providing  for  appointment  of  Supreme 
Court  clerk  by  the  judges  thereof,  instead  of  election 
by  the  people  at  large. 

(c)  Abolishing  the  provision  limiting  Cook 
County  to  but  one  of  the  seven  justices  of  the  Su- 
preme Court. 

(d)  Allowing  more  than  one  County  and  Pro^ 
bate  Judge  for  Cook  County. 

9.  The  repeal  of  the  provision  that  requires  dona- 
tions of  lands,  money  and  property  for  school,  college, 
seminary  or  university  purposes  to  be  applied  tO'  the  ob- 
jects designated,  in  order  tO'  permit  such  donations  to  be 
applied  to  public  institutions  generally  and  where  most 
needed. 

10.  To  amend  the  provisions  in  regard  to  right  of 
trial  by  jury  so  as  to  allow  less  than  twelve  to  return 
a  verdict. 

11.  Repeal  of  the  provision  in  regard  to  minority 
representation  in  the  legislature. 

12.  Abolishing  County  Courts  in  the  Country  dis- 
tricts of  the  state  and  allowing  the  consolidation  of 
County  and  Circuit  Courts. 

A  few  of  these  provisions  are  embodied  in  others,  or 
would  be  made  permissible  by  the  adoption  of  others. 
Some,  as  for  instance  that  one  as  to  arbitration  of  labor 
disputes,  are  not  necessary;  as  arbitration,  compulsory 
or  otherwise,  so  far  as  practicable,  is  within  the  police 


27 

power  of  the  state.  Municipal  ownership,  also,  is  per- 
missable  without  constitutional  changes.  Several  of 
these  propositions,  while  legally  possible,  may,  however, 
be  impracticable  on  account  of  sundry  mechanical  limita- 
tions in  the  constitution. 

There  are  also  a  great  number  of  suggestions  (which 
we  omit)  for  new  affirmative  provisions  in  the  constitu- 
tion that  are  frequently  agitated,  but  which  the  propo- 
nents do  not  stop  to  consider  are  charged  with  the  vice 
of  "mechanics"  or  ''legislation,"  the  very  thing  from 
which  we  are  now  suffering.  To  adopt  them  would  sim- 
ply be  to  repeat  the  chief  blunder  of  the  constitution 
makers  of  1870. 

Certainly  at  first  sight  the  list  above  looks  formidable. 

But  it  is  by  no  means  complete.  We  will  not  attempt 
to  schedule  all  provisions  in  the  present  constitution,  in 
addition  to  those  above,  which  are  obnoxious  to  one's 
logical  and  economic  sense.  Many  of  these  while  not 
properly  a  part  of  a  constitution,  entail  no  special  public 
inconvenience  at  this  time.  But  we  can  add  quite  a  few 
to  the  above,  which  are  thought  to  ''chafe"  the  body  pol- 
itic, and  all  of  which  prompt  serious  criticism.  Changes 
suggested  by  one  of  the  members  of  the  committee  are 
the  following: 

13.  The  provision  requiring  local  court  clerks  to  be 
elected — a  useless  expense  to  the  people. 

14.  Extending  the  temi  of  members  of  the  House  of 
Representatives  to  four  years  or  more.  (Two  year  elec- 
tions are  entirely  too  frequent  and  a  waste  of  the  public's 
time.) 

1 3.  Ret^lucing  the  body  of  the  state  legislature  of  over 
200  members  to  half  that  number,  or  less. 


28 

1 6.  Allowing  state  senators  or  representatives  after 
the  first  term  of  service  to  be  elected  from  other  districts 
than  those  in  which  they  reside. 

17.  Less  stringent  limitations  upon  formation  of  new 
counties,  or  changes  in  the  boundaries  of  some  existing 
counties. 

18.  Abolishing  the  provision  that  the  fees  of  town- 
ship officers  shall  be  uniform  in  the  class  of  counties  to 
which  they  belong. 

( Had  it  not  been  for  this  clause  the  new  township  law 
in  Chicago  could  have  been  so  drawn  as  to  dispense  with 
township  collectors'  fees,  and  thus  saved  Chicago  $40,- 
000  or  $50,000  per  annum.) 

19.  Repealing  the  provision  against  the  sale  of  the 
Illinois  and  Michigan  Canal,  unless  submitted  to  a  vote 
of  the  whole  people  of  the  state  and  approved  by  a  ma- 
jority. 

(The  cost  of  the  election  and  the  value  of  the  peoples' 
time  in  discussing  and  voting  upon  the  proposition  would 
in  all  probability  exceed  the  selling  price  oif  the  canal.) 

20.  Changing  the  provision  prohibiting  the  placing 
in  jeopardy  twice  for  the  same  offense,  where  the  neces- 
sity of  a  second  or  further  jeopardy  is  caused  by  the  act 
of  the  accused  himself.  (Such  amendment  to  be  prop^ 
erly  safeguarded  against  possible  oppression.) 

21.  The  abolishment  of  imprisonment  for  debt  in 
actions  founded  on  torts. 

22.  Repealing  the  limitations  upon  the  passage  of 
laws  as  to  titles  and  ''one  subject,"  and  covering  the  mat- 
ter by  a  standing  rule  of  the  legislature  or  a  permanent 
policy  in  respect  thereto. 

23.  Removing  the  ban  upon  local  or  special  legisla- 
tion as  to  county  seats  and  various  other  subjects. 


29 

We  repeat  now  with  added  einphasis  that  the  list  looks 
formidable.  There  are  no  doubt  others  of  more 
or  less  importance.  Besides  these,  there  are  a  number  of 
provisions  which,  though  harmless,  are  a  reproach  to  the 
state's  intelligence;  such  as  the  one  which  prohibits 
school  trustees,  directors,  etc.,  from  being  interested  in 
any  school  contracts.  This  simply  means  that  these  offi- 
cers must  not  commit  dishonesty.  Logically,  such  a 
cause,  if  it  specify  one,  should  specify  all  public  officers, 
which  would  make  it  long  enough  to  form  a  constitution 
by  itself. 

But  while  this  list  of  suggestions  is  large,  it  does  not, 
with  the  exception  of  five  or  six,  or.  for  instance,  those 
to  jury  trials,  to  members  of  the  assembly,  to  placing  in 
jeopardy,  etc.,  specify  very  fundamentally  vital  changes. 
And  over  the  adoption  of  most  of  these  there  would  be 
much  wrangling  and  disageement  in  any  body  of  men 
called  to  pass  on  them.  The  reader  hereof  has  no  doubt 
already  condemned  some  of  those  in  the  second  list.  But 
there  is  just  one  of  the  big  points,  viz. :  that  those 
items  which  seem  clearly  meritorious  to  some  will  be  con- 
demned vigorously  by  others,  and  hence  the  demand  for 
change  is  never  so  great  as  it  seems  to  one  or  a  few.  Our 
small  committee  of  three  do  not  agree  upon  all  of  them. 
.\s  said  elsewhere,  by  far  the  most  imi)ortant  part  of  the 
constitution  is  the  bill  of  rights  and  the  general  frame  of 
government;  and  if  this  sum  total  of  all  these  items  l)e 
compared  to  the  whole  lK)dy  of  the  constitution,  it  will 
indeed  seem  to  l)e  but  a  small  portion  thereof. 

The  principal  argument  of  the  advocates  of  a  conven- 
tion is  that  bccau.se  so  many  changes  are  needed,  and  \yc- 
cause  the  amendatory  process  is  slow,  therefore  the  only 
relief  is  in  a  convention  at  which  all  the  desired  reforms 
can  l)c  provided  for. 


30 

Does  it,  however,  follozv^  that  because  many  reforms 
are  necessary,  therefore  the  convention  remedy  is  the 
only  escape f 

Says  the  special  State  Bar  Committee  in  a  special  report 
made  this  year :  **The  calling  of  a  constitutional  conven- 
tion is  concededly  a  serious  step,  which  should  not  be 
taken  except  for  urgent  reasons." 

Says  Speaker  Sherman :  There  ought  to  be  no  conven- 
tion ''unless  the  necessity  is  clearly  established."  He  also 
says :  "The  state  constitution  regulates  and  protects 
rights  which  existed  before  it  was  framed,  rights  and 
principles  attending  or  that  are  growths.  *  *  *  "\Ye 
understand,  therefore,  that  even  constitutions  ought  to 
develop.  The  currents  of  active  life  may  run  beyond  or 
away  from  them.  *  *  *  All  future  generations 
cannot  agree  to  be  wrapped  in  the  garments 
devised  by  the  dead."  He  then  recites  the  objec- 
tions usually  urged  against  calling  a  convention  and  the 
fears  expressed  by  many,  viz.,  that  such  a  body  would  be 
tainted  with  faddism,  would  probably  be  tempted  to  con- 
fiscate private  property,  would  be  subject  to  corporation 
influence,  would  indulge  in  untried  and  far-reaching  labor 
provisions,  etc.,  etc.  He  then  proceeds:  'Tf  these  rea- 
sons are  conclusive  now,  they  will  be  equally  so  fifty  years 
or  a  century  from  now.  Have  the  people  been  bereft  of 
reason?  Have  they  lost  the  capacity  of  self-government? 
We  must  have  faith  in  the  never-failing  common  sense  of 
the  American  citizen."  He  then  states  from  experience 
that  the  amendment  method  is  extremely  slow  on  account 
of  the  fact  that  a  number  of  amendments  are  introduced 
at  each  session,  each  one  of  which  is  supposed  by  the 
friends  thereof  to  be  imperiled  by  the  submission  of  any 
others,  on  account  of  the  supposed  limitation. 


31 

These  arguments  seem  far  from  conclusive. 

If  it  can  be  established  to  the  satisfaction  of  the  lep^is- 
latiire  that  one  amendment  does  not  necessarily  imperil 
the  others,  if  all  are  placed  under  a  specific  article,  or 
under  a  new  article  to  be  framed,  and  that  all  amendments 
or  sections  of  such  article  could  be  voted  upon  separately 
by  the  people  at  large,  the  last  objection  of  Mr.  Sherman 
will,  of  course,  be  removed. 

But  if  the  present  caHber  of  our  legislatures  is  such  that 
mutual  jealousies  and  prejudices  and  rivalry  of  different 
interests  keep  measures  of  surpassing  import  from  being 
adopted,  it  is  hard  to  see  how  such  fact  can  be  used  to 
further  one  plan  for  making  constitutional  changes  and 
against  another.  For  such  changes  have  to  be  supple- 
mented by  legislative  action,  and  we  are  in  any  event 
brought  ultimately  to  the  door  of  the  legislature  for  relief. 
And  if  we  cannot  use  present  constitutional  provisions  on 
account  of  legislatures  being  narrow,  ignorant  or  venal 
(the  state  of  public  interest  being  such  as  to  permit  such 
a  condition  of  afifairs)  it  would  seem  to  be  a  most  inop- 
portune time  for  upsetting  all  of  the  fundamental  law  of 
the  state,  or  inviting  wholesale  attacks  upon  it. 

It  is  conceded  all  around  that  the  present  power  of  par- 
tisanship in  the  state  to-day  prohibits  us  from  getting 
better  legislators.  Is  there  any  warrant  to  believe,  then, 
that  the  men  to  be  chosen  for  the  new  convention  would 
be  selected  without  any  reference  to  partisan  interests? 
Would  the  kings  of  the  caucus  and  the  bosses  of  the  pri- 
mary temporarily  suspend  their  influence  or  yield  their 
scepter  of  authority  in  this  special  instance?  It  must 
not  be  forgotten  that  the  so-called  *'plums"  given  out  by 
party  dispensers  of  public  office  are  not  alone  financially 
remunerative  offices,  but  also  posts  of  honor,  and  mem- 


32 

bership  in  a  constitutional  convention  is  of  the  latter 
class.  Nor  must  it  be  forgotten  that  such  members  are 
required  to  be  elected  by  state  senate  districts  (two  to 
each  district),  and  in  the  same  manner  as  state  senators. 
When  we  recognize  the  caliber  of  the  latter  usually  elected 
in  many  districts,  we  cannot  deceive  ourselves  into  think- 
ing that  a  convention  thus  chosen  would  consist  of  uni- 
formly satisfactory  ''timber."  The  professional  corpo- 
ration "grafter"  would  no  doubt  be  much  in  evidence  in 
such  an  election. 

''A  constitution,"  says  our  able  speaker,  "ought  to 
develop." 

Ought  it  then  to  develop  by  extinguishing  itself  period- 
ically and  then  being  reconstructed,  it  being  hoped  or  ex- 
pected that  each  succeeding  instrument  thus  created 
would  be  far  better  than  the  preceding  one,  and  that  the 
progress  of  human  intelligence  and  experience  would 
finally  enact  the  perfect  creed?  Such  a  process  is  not 
"development."  It  is  experimentation;  and  this  upon  a 
very  vital  and  far-reaching  matter. 

The  "never-failing  common  sense  of  the  American  citi- 
zen" is  all  well  enough  when  that  individual  is  put  to^ 
exercise  that  common  sense  upon  a  single  issue  in  which 
he  clearly  understands  that  a  vote  "aye"  means  common 
sense  and  a  vote  "no"  an  absence  of  it.  But  such  a  case 
is  not  this  one.  Men  differ  as  to  their  ideas  as  to  how  to 
express  principles  and  as  to  what  are  best  methods  in  gov- 
ernment; and  the  common  sense  of  the  body  politic  is  not 
yet  free  from  passion  and  prejudice  and  partisanship  and 
venality.  As  a  composite  quantity  it  has  suffered  rank 
evils  and  practices  to  spring  up  and  at  times  threaten 
the  very  existence  of  the  state  or  its  municipalities.  It 
has  looked  complacently  upon  corruption,  bribery,  incom- 


petence,  favoritism  and  all  the  legitimate  offsprings  of  an 
intense  partisanship.  It  has  long  and  persistently  tol- 
erated and  even  encouraged  much  that  is  inconsistent 
with  and  nauseating  to  common  sense. 

What  we  must  aim  at  is  a  method  or  process  with 
which  to  extract  the  real  common  sense  of  said  citizen; 
and  what  we  get  from  this,  whether  a  double  or  triple 
extract,  will  all  be  needed  in  framing  and  enforcing  good 
constitutions  and  law^s. 

Common  sense  demands  that  we  should  not  risk  intri- 
cate and  complex,  yet  highly  important  technical  systems 
uselessly  and  periodically  upon  the  hypothesis  that  the 
"common  sense  of  the  American  citizen"  will  restore  it 
whole  and  sound. 

The  better  policy  would  seem  to  be  to  hold  to  that  which 
is  good.  And  if  evils  press  heavily  upon  us,  and  consti- 
tutional embargoes  are  in  the  way,  the  skill  of  our  public 
agents  in  cutting  out  these  latter  and  making  way  for  re- 
lief is  best  employed  (and  so  far  as  affirmation  of  such 
measures  by  the  voting  public  is  concerned,  the  same  is 
true),  when  directed  to  such  matters  alone.  We  will 
gradually  get  a  more  perfect  instrument  by  the  attention 
of  the  people  l>eing  directed  to  a  specific  issue  at  one  time. 
Not  necessarily  to  one  issue,  however,  but  to  such  issues 
only  as  are  vital  and  need  change  and  have  been  carefully 
canvassed  and  reported  upon. 

Evolution,  and  not  extinction  and  re-creation,  is  the 
natural  process  for  constitutional  "development." 


It  has  been  frequently  said  of  late  years  that  Chicago 
has  grown  out  of  the  1870  constitutional  garb  prepared 
for  her,  like  a  boy  grows  out  of  a  suit  of  clothes. 

"This,"  said  Judge  Tuley  at  a  committee  meeting  sev- 


34 

eral  years  ago,  ''is  all  nonsense.     When  a  constitution 
is  made,  it  is  made  for  all  time." 

Said  Hon.  Geo.  W.  Wall,  a  member  of  the  1870  con- 
vention (as  also  of  the  one  held  in  1863),  in  a  conversa- 
tion with  the  writer,  in  reference  to  the  same  alleged 
axiom :  "Talk  about  growing  out  of  our  state  constitu- 
tion, you  might  as  well  talk  of  growing  out  of  the 
principles  of  government." 

As  to  these  latter  statements,  they  certainly  are  sound 
in  the  abstract;  or  as  applied  to  a  constitution  made  as  one 
should  be,  a  constitution  proper]  containing  only  princi- 
ples of  government  and  fundamentally  organic  pro- 
visions. 

But  they  are  certainly  inaccurate  as  respects  the  Illinois 
constitution  of  1870  or  the  ordinary  modern  constitution, 
in  which  the  principles  of  government  while  outlined  prop- 
erly are  nearly  hidden  from  sight  by  a  mass  of  legislation, 
"mechanics"  and  method. 

On  the  other  hand,  the  illustration  of  the  growing  boy 
is  not  quite  correct.  If  it  be  clothes  that  we  are  talking 
about,  it  may  be  said  that  the  clothes  never  'did  fit  the 
boy. 

The  boy  was  put  in  a  straight  jacket,  which  made  his 
gait  awkward  from  the  start  and  dwarfed  his  growth ;  and 
his  mother  or  natural  guardian,  the  legislature,  was  pre- 
vented from  altering  his  clothes  to  keep  pace  with  his  con- 
stant development. 

That  '*a  constitution  once  made  is  made  for  all  time" 
can  be  used  here,  however,  tO'  advantage.  If  made  tO'  fit 
perfectly  the  conditions  of  a  free  people  such  instrument 
need  not  be  made  aeain.  If  not  made  perfectly,  it  can  be 
perfected  by  amendment,  but  it  ought  not  be  destroyed 
in  toto  and  rebuilt.  This  latter  process  is  unnecessary 
and  unnatural. 


35 

To  say  that  after  a  republican  slate  is  formed  and  has 
existed  a  number  of  years,  its  organic  system  and  fun- 
damental law  should  be  thrown  aside  for  a  new  frame 
and  declaration  thereof,  or  that  i)eriodically  conventions 
of  the  ])eople  should  assemble  to  even  consider  such  .1 
step,  is  to  condemn  democracy  itself  and  to  assume  that 
it  is  an  experimental  system  of  government. 

If  there  is  much  in  the  constitution  which  is  illogical 
and  cumbersome,  it  should  be  dropped  or  chopped  off 
without  bringing  into  confusion  what  is  vital. 


It  is  frequently  said  that  constitutions  grozv  and  are 
not  made. 

This  is  true  in  a  sense.  The  American  constitution, 
however,  as  an  instrument,  is  conceived  as  coming  into 
existence  at  one  instant  of  time.  What  is  meant  by  the 
expression,  as  applied  to  such  a  case  is,  that  the  pro- 
visions which  are  inserted  in  such  an  instrument  is  the  re- 
sult of  years  of  experience  of  organized  society,  and  thus 
a  "growth."  Of  course  when  a  state  is  constructed  and 
a  constitution  framed  for  it,  the  state  is  founded  upon  the 
instrument.  As  the  state  grows,  conditions  change  and 
new  provisions  and  radical  changes  in  such  instrument 
may  be  necessary ;  but  this  is  so  usually  on  account  of  in- 
aptness  and  inaccuracy  in  language,  which  of  course  is  one 
of  many  human  limitations.  In  case  of  changes,  however, 
the  original  instrument  should  remain  the  nucleus  and  be 
the  basis  of  all  that  follows.  It  should  be  the  tree  which  is 
pruned  and  grafted  and  gradually  finished  to  stand  well  in 
the  established  order  of  things.  To  take  such  an  instru- 
ment in  toto  and  cut  it  loose  from  the  moorings  of  public 
acceptance  and  from  the  shore  of  ages  of  experience,  and 
launch  it  Ixxlily  into  the  sea  of  convention  debate,  hoping 
that  it  will  drift  safely  back  again  to  shore  with  it<  sound 


36 

timbers  preserved,  its  loss  only  that  of  debris  and  un- 
sound planks,  and  its  general  structure  maintained,  etc., 
is  to  commit  one  of  the  most  foolhardy  experiments  that 
an  organized  people  can  be  guilty  of. 

It  will  be  said,  however,  that  we  have  not  thus  far 
spoken  accurately  of  the  work  or  function  of  a  constitu- 
tional convention;  that  all  the  forms  of  government  are 
not  thus  ''brought  into  hotchpotch  or  technical  chaos," 
etc. ;  that  the  product  of  such  a  body  is  not  final,  but  has 
to  be  submitted  to  the  people  for  adoption;  that  if  not 
adopted,  the  old  constitution  remains  in  force;  and  if 
adopted,  the  new  instrument  is  apt  to  be  the  better  one; 
and  if  so,  the  state  is  thus  bettered  by  the  operation. 

But  even  though  the  state  is  apt  to  be  bettered  by  such 
a  radical  operation,  the  risk  is  there  all  the  same.  And  it 
cannot  be  told  until  after  much  experience  whether  it 
has  bettered  itself  by  the  change. 

And  the  expense  is  there.  We  do  not  refer  only  to 
the  money  spent  in  paying  the  members  of  the  conven- 
tion their  per  diem  and  mileage,  etc.,  and  the  outlays 
usually  incidental  to  such  a  body.  Figured  on  the  latter 
basis  alone,  a  convention  is  an  expensive  luxury. 
But  we  refer  to  the  larger  items  of  the  time  of  the  people 
spent  in  response  to  alarms  from  the  seat  of  convention, 
in  sending  delegations  to  such  body,  in  studying  the  new 
instrument  before  election  and  all  other  expense  neces- 
sarily attendant  upon  the  agitation  of  the  public  upon  so 
many  questions  at  one  time. 

And  the  doubt,  inconvenience  and  confusion  are  there. 
These  make,  indeed,  a  heavy  item.  That  involved  in 
getting  the  new  constitution  adopted,  in  getting  passed 
the  new  legislation  to  carry  out  its  more  or  less  novel 
mandates  with  the  contest  of  many  different  interests  or 


37 

communities  for  first  attention,  in  the  long  train  of  court 
decisions  to  follow  upon  the  construction  of  the  new  pro- 
visions, before  property  and  personal  rights  have  escaped 
from  the  various  perplexities  into  which  they  shall  have 
been  thrown,  and  that  involved  in  furthering  public 
improvements  before  the  Supreme  Court  shall  have 
"tested"  various  provisions,  etc.,  etc.,  and  all  this  is  indeed 
a  heavy  tribute  to  ''change  (largely)  for  the  sake  of 
change." 

Then  there  is  the  delay.  Many  who  are  now  advo- 
cating the  calling  of  a  convention  do  not  know  the  vari- 
ous steps  to  be  taken  or  the  time  necessary  to  witness  the 
decrees  of  such  a  body  in  force.  First,  the  next  assem- 
bly (January,  1903),  would  submit  the  question  of  call- 
ing a  convention  to  the  people  at  the  next  "general"  state 
election,  November,  1904.  Then  the  next  assembly  after 
that  (Jan.,  1905)  would  call  the  convention  to  meet  at  a 
time  fixed  beyond  the  next  ''general"  election  (November, 
1906).  at  which  election  delegates  would  be  elected.  Such 
meeting  time  would  hardly  be  fixed  before  January,  1906, 
in  order  to  give  delegates  an  opportunity  to  prepare  for  it. 
The  convention  would  be  in  session  probably  five  or  six 
months,  which  would  take  it  to  the  summer  of  1907. 
The  convention  would  fix  a  day  for  a  special  election 
of  the  people  of  the  state  to  vote  upon  the  new  instru- 
ment, "not  less  than  two  months  nor  more  than  six 
months  from  its  adjournment."  This  would  bring  us  to 
the  legislature  of  January,  1909  (or  a  s|)ecial  session  in 
1908),  for  legislation,  //  oil  ivcnt  zvcll. 

But  there  is  another  deterrent  from  this  costly  and  un- 
certain exixjriment,  which  we  dread  much  more  than  any 
(»r  all  others,  viz.:  the  withdrawal  of  so  many  able  men 
( for  we  would  hope  the  convention  members  would  be 
such,   otherwise  the  plan  would  be  condemned   in   any 


38 

event)  and  of  a  large  body  of  other  public  spirited  men 
from  ordinary  vocations  of  life,  but  more  especially  from 
the  field  of  conflict  and  effort  into  vv^hich  the  many  press- 
ing social  ills  of  our  community  so  urgently  call  them. 

Many  questions  are  pressing  hard  upon  us  far  more 
important  than  changing  city  charters  or  lifting 
obstructing  ''mechanics"  out  of  our  constitution.  To 
withdraw  the  attention  of  the  entire  state  public  from 
these  for  the  next  six  or  seven  years  and  have  it  largely 
monopolized  by  mere  questions  of  law  and  theory  of  ad- 
ministration, etc.,  is  a  distressing  outlook  to  any  candid 
observer.  We  may  wake  up  then  and  find  that  in  the 
meantime  we  have  lost  much,  very  much,  which  it  will 
take  us  years  to  regain. 

One  need  not  specify  at  this  point.  But  there  is 
enough  to  make  the  thinking  citizen  think  gravely  in 
these  days  of  massive  inconsistencies,  when  riots 
do  no  longer  shock  or  alarm  us;  when  gigan- 
tic monopolies  are  uncurbed  and  their  regula- 
tion is  literally  studied  intO'  an  assumed  perplexity; 
when  gross  and  widespread  evils  are  looked  at  by  an  en- 
lightened people  as  "problems"  instead  of  simply  issues; 
when  communities  and  states  and  the  whole  nation  are 
waiting  to  be  driven  to  reform  (and  after  accomplishing 
some  temporary  relief,  possibly  spend  years  in  celebrat- 
ing their  achievement  as  ''glorious")  ;  w^hen  the  giant 
lawyers  of  the  country — now  so  much  needed  to  help  can- 
cel complexity  and  subserve  public  economy — have  nearly 
all  been  withdrawn  into  the  channels  of  commercialism; 
when  bribery — which  America  has  not  yet  learned  to  call 
treason — stalks  rampant  in  many  places ;  when  the  high- 
ways which  lead  to  the  altar  of  a  citizen  sacrifice  are 
blocked  by  long  trains  of  patriots,  each  carrying  tenderly 


39 

his  cure-all  specific  and  looking  around  pathetically  for 
the  overloaded  shrine  of  the  dead  god  of  Theory ;  when 
whole  communities  are  immersed  in  ignorance,  vice  and 
squalor,  "cheek  by  jowl"  with  others  in  the  slums  of  idle- 
ness and  selfishness ;  when  the  great  body  of  patriots 
throughout  the  land  have  not  yet  discovered  that  its 
countless  minions  in  suffering  and  unhappiness  are  the 
same  for  whom  old  warriors  fought  and  shed  blood  and 
suffered  long  and  gave  up  life ;  when  whole  states  even  are 
paralyzed  in  their  crises  and  hesitate  to  take  the  most  nat- 
ural next  step  on  account  of  the  hoodo  cry  of  **paternal- 
isni."  "irocialism,"  etc. ;  when  a  trio  or  quartet  of  men  have 
power  over  five  thousand,  and  are  able  to  terrorize  whole 
communities,  and  to  bring  to  the  pinched  faces  of  the 
multi-thousands  of  infants  of  the  poor  the 
added  bitterness  of  winter's  cold ;  when  a  supine  public 
bows  low  to  the  sway  of  a  rank  partisanship  and  neglects 
to  oust  loafers  and  incompetents  from  positions  of  power 
and  sacred  responsibility;  when  the  frivolous  yawp  of 
''party"  is  heard  at  the  bedside  of  a  state  in  sore  travail 
and  in  a  silence  which  is  sacred ;  when  opportunities 
to  encourage  the  thousands  to  earn  a  living  are  not 
taken  for  fear  of  depriving  the  dozens  of  the  incentive  to 
pile  up  what  they  cannot  use;  when  millions  are  preaching 
sacrifice  as  the  law  of  individual  life,  while  blindly  and 
doggedly  assuming  that  the  collective  life  of  the  people 
can  exist  without  it;  when  the  throng  are  scrambling  for 
positions  of  vantage  and  jxjwer  over  each  other  in  the 
name  of  hope  and  justice  and  peace;  when  men  called  to 
jury  service  are  drowning  conscience  in  subterfuge,  and 
escaping  duty  to  preach  alxjut  ''civic  pride"  and  inveigli 
against  the  "mismanagement  of  our  public  affairs" — and 
a  wronged  public  neglects  to  take  them  to  account ; 
when      patriots      immersed      in     wcallii     are     so    pa- 


40 

tiently  waiting  for  laws  to  allow  them  to  help 
their  insolvent  city,  and  to  return  it  a  tithe 
of  its  own  or  to  pay  debts  equitably  its  due; 
when  the  whole  country  is  straining  to  find 
schemes  for  relief  without  cost  and  with  no  disturbance 
of  preconceived  and  inaccurate  notions  of  "vested  rights," 
etc.,  etc. ;  when  a  fearless  has  been  succeeded  by  a  con- 
servative press,  giving  out  its  wholesome  but  carefully 
chosen  editorials  while  emptying  out  its  volume  of  sen- 
sationalism and  triviality  in  which  a  cheap  public  spirit 
willingly  sops  itself;  when  it  refuses  to  give  out  all  the 
truth  it  sees  and  to  confess  error  when  its  error  has  been 
recognized  and  thus  to  get  back  to  its  position  of  influence 
and  power  with  the  masses  which  was  once  its  otwn ; — 

When  reforms  are  so  delicately  pressed,  and  those  urg- 
ing them  tread  softly  for  fear  of  displeasing  the  politician, 
the  so-called  "leading  citizen,"  the  "labor  vote,"  their 
own  sect  or  patrons;  when  even  such  are  bowing  apol- 
ogies right  and  left  to  those  who  thrust  their  feet  in  the 
way  of  public  progress  and  forgetting  that  these,  be  they 
many  or  few,  pompous  or  base,  can  be  easily  placed  in 
default,  and  if  persistent,  shown  up  to  be  public  enemies; 
forgetting  that  the  people  are  greater  than  any  man  or  set 
of  men,  or  school  or  sect ;  when  even  such  try  to  bend  or 
twist  the  path  of  progress  so  as  to  pass  around  defiant 
enemies  of  the  republic; — and  when  they  calmly  tender 
the  state  what  is  left  after  yielding  up  the  tribute  de- 
manded by  partisanship,  greed,  commercialism,  preju- 
dice, vanity  and  cowardice; — 

In  these  days  one  of  the  things  which  Illinois  least 
needs  is  a  constitutional  convention. 

For  the  storm  clouds  approaching  fast  from  the  offing 
or  weighing  heavily  above  us  are  those  of  error  and  not 


41 

oppression ;  we  are  under  the  tyranny  of  habit  and  not 
of  law. 

The  muhitude  are  crowding  each  other  hunting  for 
the  pearls  of  life  in  the  shells  of  avarice;  a  family  united 
in  interest  are  acting  in  division  ;  comrades  in  struggle  are 
uncon^ciously  pushing  each  other  from  the  way;  loving 
hands  unconsciously  clasp  the  shuttles  wound  with  heart 
strings,  and  ruthlessly  throw  the  levers  of  the  mill  which 
grinds  *'so  cruelly  and  so  fine." 

There  are  confusion  of  voices,  compromising  of  princi- 
ples, splendid  equipments  lying  idle,  talents  unused,  sym- 
pathetic eyes  glaring  blankly  at  misery,  a  trading  in 
broken  vessels;  there  are  gardenless  homes,  dwarfed 
childhoods,  **city  wildernesses,"  lost  neighborships,  an 
aimless  patriotism,  spasmodic  fidelity,  orations  in  plati- 
tudes, jingo  restlessness,  deadening  conservatism,  a  sur- 
feit in  letters,  a  blinded  intelligence,  weapons  of  hell  of- 
fered in  the  name  of  ''humanity,"  material  wealth  and 
soul  poverty,  wisdom  frowning  mystery,  strong  men  in 
despair,  giants  decked  out  in  the  clown  togs  of  fashion,  a 
resting  upon  the  past,  bombastic  celebrations,  hollow  ap- 
plause, calloused  hearts,  metallized  lives,  colossal  self- 
deceit,  a  palsied  church,  limited  visions,  preaching  with- 
out practice,  faith  without  works, — And  a  whole  lot  of 
dead  men  moving  around. 


It  is  said  that  usually  the  delegates  to  conventions  of 
this  character  are  men  of  brains  and  experience  and  up- 
right in  character.  This  is  true.  But  it  is  also  true  that 
the  personnel  of  such  conventions  of  the  last  decade  has 
not  been  nearly  so  high  as  that  of  the  earlier  days.  Com- 
mercialism has  drawn  away  from  such  forums  the  ablest 
lawyers  of  experience  which  the  communities  afforded 
and  who  were  the  dominating  power  in  the  conventions 


' 


42 

"of  old" ;  and  partisanship  has  not  failed  to  use  its  voice 
and  authority  in  barring  some  out  and  letting  others  in. 

But  even  assuming  that  the  personnel  of  such  a  body 
to  be  called  in  Illinois  should  be  of  the  best,  it  would  be 
too  large  to  give  the  best  results. 

We  would  not  view  with  intense  alarm  a  commission 
of  five  or  seven  of  the  very  ablest  lawyers  and  publicists 
of  the  state,  given  full  power  to  make  constitutional  al- 
terations. Such  men  would  be  the  least  prone  tO'  make 
unnecessary  changes.  But  we  would  view  with 
deep  concern  the  willingness  of  the  state  to  intrust  them 
with  this  power  where  unnecessary,  or  the  state  of  mu- 
nicipal life  which  necessitated  summoning  them  tO'  so  act. 

However,  our  concern  in  such  case  would  be  increased 
if  the  number  of  members  thus  attempting  to  serve  the 
public  were  multiplied  from  the  few  to  a  hundred  or 
more.  The  result  would  be  plenty  of  debate,  but  less  de- 
liberate study,  much  more  dissension,  more  unweildiness 
in  the  movements  of  the  body,  a  less  complete  and  com- 
prehensive and  more  poorly  knit  instrument  in  the  end. 

Now,  the  people  of  the  state  have  ultimately  to  pass 
upon  all  constitutional  changes.  And  hence  the  ques- 
tion is  one  not  solely  of  getting  the  best  document 
formed,  but  of  getting  the  best  which  the  people  can  be 
nduced  to  accept,  in  order  that  the  state-wi'de  agitation 
and  the  expense,  etc.,  may  not  be  wasted  or  go  for  naught. 

We  would,  therefore,  not  favor  even  any  "commis- 
sion" plan  (whether  made  up  by  a  special  committee  of 
the  assembly  or  of  outsiders  specially  appointed),  other 
than  one  requiring  such  body  to  first  recommend  to  the  as- 
sembly the  changes  approved.  For  the  assembly  could 
thus  be  used  as  a  gauge  to  test  the  public  sentiment  upon 
the  questions  treated  and  also  the  capacity  of  the  public  to 


43 

be  educated  up  to  the  work  of  the  commission  if  it  were 
radical  or  drastic  and  yet  meritorious.  That  part  of  the 
work  which  would  pass  the  assembly  by  a  two-thirds 
vote  would  thus  be  well  assured  of  ultimate  adoption  by 
the  people  at  large. 

The  natural  result  of  such  a  permanent  (the  amend- 
ment) plan  would  be:  That  the  most  needed  amendments 
would  be  assured ;  those  of  more  questionable  merit,  or 
upon  which  the  people  would  be  apt  to  be  divided  and 
which  would  suffer  a  doubtful  fate  at  the  polls,  would 
be  eliminated,  while  the  parts  of  the  public  body  in  a  nor- 
mal condition  would  not  be  disturbed. 

While  to  adopt  the  other  or  ''convention"  policy 
is  to  commit  the  state  to  a  succession  of  periodical  and 
strenuous  parturitions  at  each  of  which  it  has  to  choose 
between  surrendering-  its  old  self  for  the  new  and  untried 
prodigy,  or  having  experienced  its  lalx)rs  for  nothing. 


In  the  foregoing  pages  and  in  the  legal  argument  ap- 
pended hereto  the  present  constitution  of  Illinois  has  been 
much  criticised.  But  we  do  not  mean  that  this  shall  be 
taken  to  reflect  upon  the  caliber  and  ability  of  the  men 
who  in  the  convention  of  1869-70  framed  up  that  instru- 
ment. In  fact  we  believe  that  one  of  the  most  forlorn 
hopes  indulged  to-day  by  many  is  that  it  is  possible  in 
the  present  state  of  partisanship,  etc.,  to  approach  it  in 
point  of  ability  and  high-mindedness  in  selecting  by  vote 
a  new  similar  body.  That  convention  met  shortly  after 
the  war  of  the  rebellion  and  l)efore  the  public  had  learned 
to  place  power  where  power  belonged;  and  to  sacrifice 
much  in  demanding  that  it  shall  be  rigidly  exercised  in 
the  public's  interest  rather  than  to  add  to  the  public's 
burdens  that  of  an  awkward  or  hindering  system;  will- 
ing to  be  driven  to  cure  first  that  which  first  ails  or  to 


44 

first  replace  that  which  first  gets  out  of  place.  In  fact 
we  have  not  reached  such  a  policy  yet.  But  all  the  same 
we  will  be  forced  sooner  or  later  to  adopt  it. 

No  doubt  the  instrument  framed  by  those  men  would 
have  been  far  simpler  and  broader  if  they  had  not  had  to 
face  the  question  of  ultimate  assent  by  the  people  at  large. 
The  latter  demanded  with  much  emphasis  that  many 
things  properly  subjects  of  legislation  be  inserted  in  the 
constitution.  Had  the  convention  refused  to  yield  to 
this  demand  their  work  might  have  been  rejected  and 
their  time  wasted. 

Then  again  the  prejudices,  habits  and  schools  of 
thought  then  prevalent  more  or  less  environed  these  able 
men  as  those  now  existing  do  the  able  men  of  to- 
day. Each  generation  can  more  easily  see  the  faults  of 
the  preceding  one.  We  should  therefore  steer  clear  of 
recklessly  changing  something  evolved  from  the  experi- 
ence of  the  past,  and  on  the  other  hand  of  assuming  that 
because  able  men  of  a  former  generation  framed  an  in- 
strument it  is  so  sacred  that  it  shall  never  be  changed. 

We  have  elsewhere  said  that  while  the  major  part  of 
our  constitution  is  ''legislation,"  yet  it  is  good  legisla- 
tion. It  is  for  this  reason  that  we  have  not  been  incom- 
moded more  and  earlier  by  the  fetters  in  said  document. 
Some  of  such  legislation  was,  however,  poor,  as  was 
inevitable,  and  much  that  was  wholesome  in  1870  has 
been  rendered  more  or  less  noxious  by  changing  condi- 
tions. This  about  accounts  for  the  sum  of  constitutional 
evils  from  which  we  now  suffer. 

That  there  are  not  more  of  them  is  a  good  object  les- 
son in  proving  that  had  we  to-day  a  legislature  of  as  able 
caliber  as  that  represented  by  the  convention  of  1870 
(which  in  reality  we  should  have),  the  said  body  could 


45 

be  half  as  great  in  numbers,  its  sessions  half  as  frequent 
and  half  as  long,  and  the  public  get  four  times  or  more 
the  vital  legislation  which  it  gets  to-day. 

Another  thing  to  be  remembered  is  that  it  is  idle  for 
Illinois  to  change  her  constitution  without  bettering  her 
legislature.  The  best  constitution  possible  to  draft  or 
conceive  of  can  not  furnish  good  laws  or  prohibit  bad 
ones  any  more  than  good  laws  can  in  and  of  themselves 
produce  good  citizenship. 

The  work  that  Chicago  has  thus  far  done  in  redeem- 
ing her  city  council  from  the  hand  of  the  briber  and  cor- 
ruptionist  is  an  invaluable  preliminary  to  appropriate 
charter  reforms.  The  work  now  being  done  to  improve 
her  representation  in  the  assembly  is  likewise  in  line  with 
real  and  permanent  betterment. 

As  the  field  of  legislation  is  so  much  wider  than  that 
covered  by  the  constitution,  we  would  expect  that  even 
a  cursory  study  of  the  former  would  reveal  many  oppor- 
tunities for  the  betterment  of  Chicago's  municipal  con- 
ditions which  need  not  wait  upon  constitutional  amend- 
ment or  revision.  Even  the  principal  ones  of  the  six  or 
eight  radical  local  reforms  which  we  are  all  endeavoring 
to  bring  about  need  not  wait  for  constitutional 
amendment,  but  am  be  cured  at  Spriu^i^field  by  Icps- 
latioti  in  the  coming  winter  months;  legislation  which 
will  not  need  to  be  repealed  or  even  substantially  changed 
by  the  adoption  '^f  proposed  constitutional  amendments. 
This  may  seem  a  bold  statement  to  some;  and 
the  tempting  challenge  to  substantiate  it  can  not  be  ac- 
cepted with(nit  prejudice  to  the  frame  of  this  report 
already  long;  and  much  we  have  written  along  this  line 
will  therefore  have  to  be  omitted.  But  it  is  true  never- 
theless.    If  this  subject  is  thoroughly  worked  up  and  cov- 


46 

ered,  the  prospects  of  much  relief  the  coming  winter  is 
not  discouraging.  Chicago's  representation  in  the  com- 
ing session  will  be  better  than  that  in  the  last.  She  has, 
too,  as  the  assembly  is  at  present  constituted,  some  able 
members,  and  a  listening  court  in  the  country  members. 
Most  of  the  latter  are  ruggedly  honest;  there  are  many 
men  of  ability  and  at  least  one  giant. 

That  we  need  constitutional  changes  badly  there  can 
be  no  doubt.  Therefore  let  this  work  go  on.  If  we 
are  truly  sensitive  of  other  and  graver  matters,  we  are 
more  sensitive  than  ever  of  things  "out  of  whack'*  in  our 
frame  of  state  and  local  government.  Therefore  let  the 
work  go  on. 

But  while  prosecuting  it  do  not  let  us  wrap  ourselves 
up  in  the  fond  but  vain  hope  that  constitutions  and  laws 
can  redeem  a  people  from  inherent  vices  or  save  them 
from  decay,  which  past  generations  have  so  frequently 
done.  We  must  not  forget  that  Rome  had  a  system  of 
laws  than  which  the  brains  of  man  has  scarcely  ever  pro- 
duced a  wiser.  Mechanical  and  legal  limitations  obstruct 
progress ;  that  is  why  we  want  to  remove  them.  But  they 
have  no  life-giving  virtues.  And  one  can  almost  feel  the 
spirit  of  resentment  springing  up  in  a  sensitive  state  as 
she  realizes  how  many  will  hide  under  the  agitation  for 
technical  change  to  put  off  the  day  of  ultimate  reckoning, 
or  who  will  offer  to  rise  and  shine  in  convention  halls  as 
their  meed  of  service  in  a  period  of  much  communal  dis- 
tress. In  all  this  movement  and  agitation  we  must  not 
forget  just  what  we  can  accomplish  by  law  and  what  we 
can  not.  We  will  thus  produce  better  law  and  get  more 
accurate  results.  He  is  not  master  of  the  law  who  does 
not  see  its  limits. 

There  is  also  a  very  erroneous  but  common  notion 


47 

about  the  supposed  drastic  limitations  in  our  constitution 
upon  local  or  special  legislation.  It  is  not  generally  un- 
derstood that  these  are  not  limitations  u\xm  the  power 
of  the  assembly  in  such  cases  only  where  a  general  law  can 
be  made  to  answer.  Wherever  conditions  obtain  in  one 
community  of  the  state  and  not  in  others  a  law  special  in 
application  to  that  community  and  affecting  such  condi- 
tions will  be  upheld. 

This  is  a  wise  rule  and  should  be  strictly  enforced  by 
the  legislature  itself  without  any  constitutional  direction 
therefor.  The  only  objection  to  having  it  in  the  consti- 
tution is  the  fact  that  placed  there  it  gives  or  fosters  :i 
disposition  or  gives  an  inducement  to  those  affected  to 
test  every  such  law  in  the  courts  before  the  classification 
made  by  the  act  in  respect  to  conditions  is  accepted  as 
sound. 

So,  too,  the  general  public  forgets  that  the  police 
power  of  the  state — the  safety  valve  to  constitutional 
troubles  and  legal  ''boiling  pots" — is  ample  in  most  in- 
stances to  relieve  legislative  and  municipal  ills  where 
other  remedies  fail.  The  ramifications  of  its  principles 
are  wide  and  deep;  so  much  so  that  the  Supreme  Court 
of  the  United  States  has  declined  to  attempt  to  define  it 
or  to  say  as  to  what  subjects  ajid  in  wliat  cases  it  shall 
apply. 


48 
Conclusion. 


In  conclusion  we  desire  to  say  that  there  is  no  necessity 
for  much  wrangling  over  this  question  of  convention  or 
none.  If  the  advantages  and  disadvantages  of  the  two 
plans  for  a  change  have  not  been  satisfactorily  treated 
here,  the  delegates  in  the  coming  convention  can  assign 
the  work  to  a  committee  of  its  members  and  have  it  more 
accurately  performed. 

In  almost  every  address,  editorial  or  treatise  on  this 
subject  thus  far  issued  it  is  conceded  that  the  calling  of 
a  convention  is  a  serious  step  which  should  only  be  taken 
if  necessary. 

Our  efforts  have  been  therefore  directed  towards  show- 
ing that  it  is  not  necessary.  The  first  question  is,  how 
wide  in  scope  can  single  amendments  or  amendments  tO' 
be  voted  on  at  one  time  be  made?  This  is  a  purely  legal 
question,  and  has  been  fully  argued  in  the  annexed  pam- 
phlet, and  later  will  be  presented  the  conclusions  of  the 
examining  counsel  when  they  come  in,  whether  confirma- 
tory or  negative. 

The  next  ciuestion  is,  if  the  single  amendment  plan  be 
not  feasible,  how  soon  and  by  what  steps  can  the  present 
unreasonable  prohibitions  upon  amendments  be  repealed  ? 

And  the  next  question  after  that  is  under  what  circum- 
stances is  calling  a  constitutional  convention  justified? 

The  first  two  questions  are  legal  ones  purely;  and  the 
last  is  substantially  that.  For  to  see  how  far  and  in 
what  direction  certain  provisions  reach  intO'  state  or  mu- 
nicipal life,  and  to  tell  what  changes  may  be  necessary  to 
allow  advocated  reforms,  etc.,  is  the  work  of  lawyers. 

Yet  our   newspapers  are  still   publishing  the   "senti- 


49 

ments"  of  all  trades  and  classes  upon  this  non-sentimental 
question.  What  are  the  "sentiments"  of  the  people  at  large 
as  to  one  of  Dr.  Senn's  surgical  operations?  It  will  be 
answered  that  in  this  case  the  people  are  the  surgeons 
who  in  voting  upon  submitted  amendments,  etc.,  ulti- 
mately operate  upon  themselves.  True,  but  diagnosing 
their  legal  troubles  and  tracing  symptoms  to  their  source 
and  framing  up  and  recommending  legal  weapons  for  the 
occasion  and  explaining  their  use  and  "proving  the  case," 
so  that  the  unskilled  can  act  intelligently  in  voting  upon 
remedies,  is  the  work  of  skilled  hands  and  not  a  matter  of 
sentiment.  Above  all,  it  takes  work;  and  the  public 
should  soon  grow  into  the  habit  of  demanding  this  as  a 
condition  precedent  to  its  giving  serious  attention  to  prof- 
fers of  remedies. 

It  is  not  a  subject  for  prejudice  or  hobby-riding.  And 
if  the  earnest  people  engaged  in  this  work  shall  after  calm 
deliberation  conclude  to  renew  the  crucial  experiment 
of  a  constitutional  convention  in  Illinois,  we  should  all 
join  in  and  sacrifice  much  to  make  it  a  success,  and, 
above  all,  to  put  into  it  the  best  brains,  the  most  rugged 
fidelity  and  the  most  thorough  experience  that  the  state 
affords.  And  if  in  spite  of  our  efforts,  crises  occur  and 
great  dangers  threaten,  we  should  then  join  in  earnest 
appeals  to  "the  common  sense  of  the  Americ:m  citizen." 
Possibly  we  would  be  put  to  this  and  in  some  instances 
there  might  be  little  else  to  do. 

No  one  who  studies  and  reflects  upon  the  question  of 
constitutional  conventions  in  America  but  will  wonder 
why  the  people  of  so  many  states  have  resorted  to  them 
so  frequently.  These  communities  have  acquired  the 
"convention  habit."  No  better  service  could  be  done  by 
a  legal  author  than  to  show  up  to  a  "going"  state  the  un- 


50 

naturalness  of  calling  such  conventions,  and  to  help 
break  up  this  habit.  But  this  must  be  the  work  of  other 
hands  than  ours. 

Judge  Jameson,  in  his  work  on  "Constitutional  Con- 
ventions," defends  them  as  necessary  in  case  many  and 
radical  changes  are  needed.  He  states  that  in  this  way 
''the  state  has  a  right  to  reproduce  itself  as  an  animal 
does." 

But  this  simile  is  not  similar.  In  the  case  of  the  ani- 
mal it  can  live  with  its  offspring.  But  in  the  case  of  the 
state,  if  it  begets  such  an  offspring,  the  parent  is  trans- 
formed and  merged  into  the  latter  and  the  old  state  is 
extinct.  If  the  state  has  become  so  effete  or  diseased 
that  it  threatnes  to  die,  then  it  should  transform  itself, 
and  a  convention  is  not  inappropriate  to  that  end. 

In  passing  upon  the  merits  of  the  two  principal  classes 
of  constitutions,  viz. :  written  and  unwritten,  that  author 
recommends  the  unwritten  constitution  "for  a  commu- 
nity whose  political  training  has  been  carried  to  a  high 
degree  of  perfection."  "But,"  says  he,  "for  a  commu- 
nity whose  training  has  been  imperfect,  or  which  is  sub- 
ject to  fits  of  political  apathy,  alternating  with  those  of 
intense  zeal  for  reform,  the  written  constitution  is  doubt- 
less the  better  one." 

The  simplest  written  constitution  is  nearest  to  the 
unwritten  one;  and  a  periodical  and  successive  making 
over  of  constitutions,  as  is  usual  in  conventions,  is  farther 
than  ever  away  from  a  wise  and  stable  policy  in  respect 
to  organic  form  and  foundational  principles.  It  is  hard 
therefore  to  see  a  reason  for  the  author's  tolerance  to- 
ward such  bodies.  The  careful,  deliberate  and  specific 
amendment  method  is  all  that  Illinois  needs  or  is  apt  to 
need;  and  if  we  could  in  never  so  humble  a  manner  do 


51 

something  definite  towards  making  her  constitutional 
conventions  a  thing  only  of  historical  interest,  we  would 
deem  it  a  kindly  office  which  it  were  a  privilege  to  per- 
form. 

It  must  not  be  forgotten  that  there  has  been  but  one 
Magna  Charta  and  but  one  constitution  of  the  United 
States.  The  latter  has  had  fifteen  amendments;  but 
the  first  ten  of  them  are  simply  declarations  usual  in  the 
Bill  of  Rights,  and  it  has  been  finally  held  that  they  do 
not  add  to  or  detract  from  state  powers.  The  first 
twelve  were  passed  very  shortly  after  the  union  was 
formed ;  and  hence  but  three  amendments  have  been 
required  in  over  one  hundred  years.  Yet  the  functions 
or  ramifications  in  actual  working  of  the  federal  system 
have  grown  wonderfully  in  that  time,  and  the  people  of 
the  wh(jle  nation,  as  such,  have  been  much  more  closely 
knit  together  in  personal  interest  and  relationship. 

No  reflecting  lawyer  in  Illinois  can  doubt  but  that  had 
we  retained  the  original  constitution  of  1818  and  made 
specific  changes  by  amendments  from  time  to  time,  as 
needed,  we  would  now  have  a  much  better  and  far  simpler 
constitution,  and  we  would  have  been  saved  the  state- 
wide agitation  of  1848,  1863  and  1870,  and  the  big  grist 
of  new  decisions  and  the  many  complexities  in  the  law 
which  followed  in  the  wake  of  the  adoption  of  the  consti- 
tution of  1848  and  1870. 

What  a  difference  in  a  state's  tranquillity  a  natural 
or  erroneous  method  of  making  constitutional  changes 
may  make  is  shown  by  the  history  of  the  two  neighlx:>ring 
states  of  New  Hampshire  and  Massachusetts,  of  appar- 
ently equal  intelligence  and  enlightenment.  The  former 
has  made  its  amendments  through  conventions,  and  for 
much  of  the  period  of  her  existence  the  question  of  call- 


52 

ing  a  constitutional  convention  has  been  required  to  be 
periodically  submitted  to  the  people  for  a  vote.  The  re- 
sult is  that  the  product  of  her  conventions  in  the  way  of 
amendments  has  been  oftener  rejected  than  accepted  by 
the  electors  at  the  polls ;  and  the  people  of  the  whole  state 
have  been  teased  and  annoyed  by  the  question  of  calling 
a  convention  being  submitted  to  them  over  twenty  times 
in  less  than  seventy-five  years. 

On  the  other  hand,  Massachusetts  has  not  been  agi- 
tated by  a  convention  since  1820;  many  amendments  sub- 
mitted to  the  legislature  have  been  adopted  and  scarcely 
any  rejected. 

The  policy  of  the  American  states  ever  since  their  or- 
ganization tO'  gradually  fetter  their  legislatures  more  and 
more  is  well  reflected  in  the  constant  growth  in  length 
of  their  constitutions.  The  present  constitutions  of  most 
of  the  older  states  are  usually  about  three  times  as  long 
as  the  originals.  That  oi  Virginia  is  six  times  as  long; 
that  of  Illinois  is  two  and  one-half  as  long.  The  original 
constitution  of  New  Hampshire  conatined  600  words; 
those  of  Mississippi,  established  in  1875,  and  of  South 
Dakota,  adopted  in  1889,  contain  each  over  26,000,  and 
are  each  about  forty  times  as  long. 

Mr.  Thorpe,  in  an  article  upon  Recent  Constitutions, 
says  that  the  length  of  the  constitutions  of  the  new  states 
lately  admitted  to  the  Union,  "proves  that  the  people  have 
lost  faith  in  their  legislatures."  And  Mr.  Bryce  says 
"they  witness  to  a  distrust  by  the  people  of  their  own 
agents  and  officers."  And  the  latter,  after  remarking 
that  the  less  the  legislatures  are  trusted  the  worse  they 
will  be  and  that  therefore  the  first  step  to  reform  is  to  im- 
prove them,  concludes:  "But  the  improvement  of  the 
legislature  is  just  what  the  Americans  despair  of,  or,  as 
they  would  prefer  to  say,  have  not  time  to  attend  to." 


53 

They  will  soon,  however,  have  to  take  time.  For  when 
the  public  life  is  gradually  becoming  more  and  more  in- 
terwoven with  private  life,  and  the  administration  of  its 
affairs  arc  telling  so  directly  upon  the  daily  interest  and 
economy  and  life  of  its  citizens,  this  duty  is  becoming 
one  of  self-protection. 

Had  this  duty  been  recognized  earlier  in  Illinois,  and 
had  the  constitution-makers  of  the  earlier  day  driven  the 
people  to  meet  it  by  refusing  to  attempt  to  make  consti- 
tutions a  cover  of  retreat  for  the  public  in  shirking  this 
duty,  it  is  possible  that  we  would  have  long  ago  reached 
the  turning  point  in  this  vital  matter  of  public  policy; 
and  that  we  would  now  be  much  further  along  in  the 
road  towards  the  goal  of  uniform  excellency  in  private 
citizenship,  which  w-ill  cancel  evil  in  public  life  as  the 
light  dispels  the  darkness. 

However  this  may  be,  the  first  duty  of  Illinois  is  to 
improve  her  legislature;  for  big  questions  are  coming 
fast  which  will  need  men  of  training,  of  rugged  honesty, 
of  courage  and  of  brains. 

Tn  the  annexed  opinion  it  is  said:  "It  (the  conven- 
tion) is.  however,  well  and  naturally  adapted  to  the  con- 
struction or  creation  of  a  state;  anrl  in  fact  until  the 
state  shall  have  become  so  diseased  as  to  need  practical 
re-creation,  we  can  see  no  other  use  for  it." 

If  Illinois  were  in  such  a  diseased  condition,  it  would 
be  our  duty  to  confess  it.  But  there  are  very  few,  if  any. 
within  the  borders  of  the  state  who  can  at  present  sec  any 
sucli  crisis  as  this. 

Illinois  may  well  envy  Massachusetts  in  her  record  in 
having  for  nearly  a  century  adhered  to  a  constitution 
compo.*:ed  in  chief  of  organic  provisions  and  governmental 
principles,  and  the  total  absence  from  her  history  of  any 


54 


but  the  one  revision  convention.  Her  policy  in  this  re- 
gard is  directly  traceable  to  the  great  Webster,  whose 
marvelously  clear  insight,  broad  vision,  and  splendid  equi- 
pose  of  judgment  and  the  dedication  of  whose  magnificent 
talents  to  America's  sovereign  weal  seem  to  gather  more 
telling  evidence  and  to  settle  into  more  grateful  remem- 
brance as  her  commonwealths  grow  old. 

Respectfully  submitted. 

Harry  S.  Mecartney^ 

Chairman. 
E.  Allen  Frost, 
Robert  McMurdy, 


Committee. 


r^ 


h 


APPENDIX. 


The  SCOPE  of  AMENDMENTS  to  the 
ILLINOIS  CONSTITUTION, 


L 

Would    an    ainendmeiit    to    tlic    Illinois    Constitution 
drafted  in  the  form  as  annexed  liereto,  be  invalid? 

Section  2  of  Article  XIV  of  the  Illinois  Constitution 
is  as  follows : 

"Section  2.  Amendments  t(^  this  Constitution  may 
be  proposed  in  either  House  of  the  General  Assembly, 
and  if  the  same  shall  be  voted  for  by  two-thirds  of  all 
the  members  elected  to  each  of  the  two  Houses,  such  pro- 
posed amendments,  together  with  the  yeas  and  nays  of 
each  House  thereon,  shall  be  entered  in  full  on  their  re- 
spective journals;  and  said  amendments  shall  be  sub- 
mitted to  the  electors  of  this  state  for  adoption  or  rejec- 
tion at  the  next  election  of  members  of  the  General  As- 
sembly, in  such  manner  as  may  be  prescribed  by  law. 
The  proposed  amendments  shall  be  published  in  full  at 
least  three  months  preceding:  the  election,  and  if  a  ma- 
jority of  the  electors  voting  at  such  election  shall  vote  for 
the  proposed  amendments,  they  shall  become  a  part  of 
this  constitution.  But  the  General  Assembly  shall  have 
no  pozcer  to  propose  amendments  to  more  than  one  arii- 
cle  of  this  constitution  at  the  same  session,  nor  to  the  same 
article  oftener  than  once  in  four  years. 

We  quote  from  the  report  on  this  matter  made  by  the 
writer  and  Enoch  J.  Price.  Esq..  to  the  Federation  two 
years  ago. 


i 


"Th'j  provision  that  amendments  to  but  on^  article  may 
be  proposed  at  the  same  session  of  the  General  Assembly 
has  frequently  confused  the  public  mind.  The  constitu- 
tion is  divided  into  fourteen  articles.  An  indefinite  num- 
ber of  amendments  might  be  submitted  at  the  same  term, 
provided  only  that  they  all  purport  to  amend  the  same 
article. 

'The  amendments  v^^hich  may  be  sulmittea  are  not  lim- 
ited to  amending  the  subject-matter  of  the  article  which 
they  purport  to  amend,  but  may  in  fact  amend  several 
of  the  articles  of  the  constitution  at  one  and  the  same 
time.  This  is  an  exceedingly  important  principle  to  be 
kept  in  mind.  The  Supreme  Court  has  expressly  so  held 
in  the  case  of  Wilson  v.  Board  of  Trustees,  133  111.,  443, 
which  involved  the  constitutionality  of  the  act  under 
which  the  Sanitary  District  of  Chicago  was  organized. 
The  question  arose  as  to  the  effect  of  the  amendment  of 
Section  31  of  Article  IV  of  the  constitution  adopted  in 
1878,  upon  Section  9  of  Article  IX,  relating  tO'  the 
power  to  make  special  assessments  for  local  improve- 
ments. The  court  held  that  the  amendment  operated  to 
amend  Section  9,  Article  IX,  precisely  as  if  it  had  inserted 
into  the  body  of  that  article  the  name  of  drainage  dis- 
trict as  one  of  the  corporations  which  might  be  given  the 
power  to  levy  special  assessments. 

"Our  conclusion  is  that  a  single  amendment  may  be 
made  broad  enough  in  its  terms  to  give  the  most  com- 
prehensive power  to  accomplish  all  the  reforms  in  local 
government  needed  or  desired  by  the  people  of  Cook 
County,  and,  consequently,  if  such  an  amendment  can  be 
secured  a  constitutional  convention  is  not  needed  for  that 
purpose.** 

It  is  this  conclusion  which  Speaker  Sherman  announces 
that    he    "disagrees    with,"    which    a    member    of    the 


Chicago  bar  in  a  banquet  opinion  calls  "subterfuge"  and 
"an  ingenious  scheme,"  and  which  a  committee  of  the 
State  Bar  Association  after  some  argument  thinks  to  be  a 
mere  attempt  at  "smuggling  provisions  into  the  constitu- 
tion," to  constitute  a  "palpable  trick."  and  "believes 
would  be  held  invalid  by  the  Supreme  Court." 


Under  our  present  constitution  each  bill  passed  by  the 
Legislature  must  have  expressed  in  its  title  the  general 
subject  affected  by  it. 

Each  bill  must  also  embrace  but  one  subject. 

Many  acts  passed  since  1870  have  been  held  invalid  on 
account  of  these  provisions.  And  lawyers  habitually  test- 
ing laws  by  them  naturally  look  for  a  similar  limitation 
or  naturally  incline  to  give  a  similar  construction  to  sup- 
posed kindred  clauses  in  the  constitution.  It  is  be- 
lieved that  this  practice  is  largely  responsible  for  the 
opinions  of  these  gentlemen,  by  which  they  give  to  the 
amendment  provision  a  meaning  which  requires  language 
not  in  the  provision  itself. 

It  is  said  by  our  worthy  contemporaries  that  the  true 
intent  and  meaning  of  this  provision  is : 

1.  That  only  one  article  can  be  amended  at  a  time. 

2.  That  such  amendment  must  directly  relate  or  be 
germane  to  the  "subject"  of  the  article. 

3.  That  it  must  not  amend  or  repeal  the  provisions  of 
any  other  article. 

It  is  quite  clear  that  only  the  first  of  these  three  re- 
quirements is  expressed  in  the  amendment  provision  it- 
self. 

The  other  two  have  to  be  supplied,  if  at  all,  by  mere 
inference. 


1.  As  to  the  first  requirement,  so  long  as  we  are  deal- 
ing with  ''articles"  we  will  adhere  to  it.  We  will  say 
that  all  the  amendments,  no  matter  how  many,  which 
are  proposed  at  one  session  must  be  placed  under  and 
purport  to  amend  but  one  "article."  (Later,  however, 
we  will  show  that  this  limitation  does  not  refer  to  the 
portions  of  the  constitution  other  than  "articles,"  which 
are  of  course  amendable;  and  that  this  being  so,  the  bars 
are  down  at  all  events  for  any  amendments  deemed  ad- 
visable by  legislature  and  people.) 

2.  So  far  as  the  second  requirement  is  concerned,  it 
is  clear  that  the  term  "subject"  is  not  a  definite  attribute 
or  accompaniment  of  the  v/ord  or  item  or  division  "arti- 
cle" of  the  constitution. 

There  are  headings  to  various  articles,  such  as  "rev- 
enue," "corporations,"  etc. 

But  these  are  nowhere  declared  to  be  indicative  of  any 
distinct  subject  of  the  article  which  should  be  considered 
as  forever  peculiar  to  the  article  itself. 

They  are  no  more  than  mere  appellations  for  con- 
venience, fairly  indicative  of  the  general  subject  or  sub- 
jects covered  by  the  provisions  placed  under  each  head- 
ing. 

There  are  likewise  in  some  articles  a  number  of  such 
headings  set  in  various  places  throughout  them,  and  of 
equal  prominence  in  the  matter  of  size  of  type;  and  these 
are  nowhere  declared  to  be  mere  subheads  or  divisions  of 
a  leading  or  general  or  "head"  appellation  or  "subject." 

As  said  before,  a  statute  to  be  valid  must,  according  to 
our  constitution,  have  but  one  subject,  and  that  subject 
must  be  embraced  in  its  title.  The  provisions  of  the  act 
must  be  fairly  germane  to  the  subject  or  object  expressed 


in  the  title  of  the  act.  If  some  of  the  sections  are  thus 
germane  and  others  are  not,  /.  c,  relate  to  other  subjects, 
the  latter  sections  will  fail,  and  the  former  will  stand;  but 
if  they  are  not  separable  so  as  to  leave  the  main  object  of 
the  act  unimpaired  by  excludinj^:  the  one  class  and  retain- 
ing the  other,  both  are  invalid  and  the  whole  statute  fails. 

The  test  of  the  validity  of  any  section  of  the  act  in 
this  respect  is:  Is  it  fairly  germane  to  said  expressed 
subject  ? 

But  this  test  is  applied  to  each  statute  solely  by  virtue 
of  the  constitutional  requirement  therefor. 

Before  such  provisions  were  adopted  and  adhered  to 
the  whole  field  of  method  of  procedure  was  open  to  the 
legislature.  Congress  to-day  has  no  such  limitations.  It 
legislated  in  respect  to  the  Cuban  constitution  by  pro- 
visions in  the  bill  for  ''appropriations  for  the  army  and 
navy." 

The  practice  of  the  "sharp"  members  of  the  Assembly 
and  the  floaters  of  private  schemes  for  gain,  hiding  vital 
provisions  away  in  some  obscure  corner  of  a  bill  osten- 
sibly passed  for  another  purpose,  was  no  doubt  the  occa- 
sion for  the  adoption  of  these  limitati  ins.  It  was  the 
result  of  treating  public  servants  as  public  enemies  and 
of  attempts  to  fetter  them — which  was  the  cardinal 
feature  of  the  work  of  the  constitution  makers  of  1870. 

It  is  probable  that  general  loose  methods  in  fram- 
ing bills  and  arranging  their  subject-matter,  from  which 
much  inconvenience  in  referring  to  statutes  accrued  to 
the  bar  and  courts,  was  also  partly  resix)nsible  for  said 
limitations.  The  whole  matter,  however,  is  logically  one 
of  convenience  or  method  only  and  has  scarcely  a  proper 
place  in  a  constitution.  It  could  be  covered  by  a  rule 
of  the  Assembly  that  no  bill  would  be  considered  unless 


it  were  framed  within  these  lines.  And  if  perchance 
after  an  act  had  been  passed  some  section  was  found  to 
be  naturally  out  of  place,  it  could  be  noted  and  referred 
to  by  the  publisher  of  the  statutes  at  the  point  where  it 
logically  fitted. 

An  occasional  inconvenience  in  this  respect  would  be  an 
infinitely  less  evil  than  the  frequency  with  which  laws  of 
the  most  vital  importance  are  declared  void  after  years  of 
agitation  and  expenditure  of  public  energy  for  their 
passage.  Relief  is  thus  denied,  solely  on  account  of  the 
mere  wording  of  a  title  or  the  arrangement  of  subject- 
matter. 

We  repeat,  there  is  no  expressed  requirement  in  the 
constitution  that  amendments  to-  one  article  must  relate 
to  the  subject  of  that  article;  and  secondly,  there  is  no 
declaration  as  to  what  is  the  subject  of  an  article. 

Nor  is  there  any  uniform  plan  of  the  constitution  by 
which  a  distinct  subject  is  placed  under  a  distinct  article 
to  be  seized  on  for  the  application  of  this  doctrine  of  infer- 
ence.    There  are  in  many  articles  a  number  of  subjects. 

What,  for  instance,  is  the  distinct  subject  of  Article 
II,  headed  ''Bill  of  Rights"?  Its  first  section  declares 
that  "all  men  are  by  nature  free  and  independent,"  and 
that  ''among  their  inalienable  rights  are  life,  liberty  and 
the  pursuit  of  happiness."  In  the  ^th  the  privilege  of  the 
writ  of  habeas  corpus  is  preserved.  The  15th  directs 
that  "the  military  shall  be  in  strict  subordination  to  the 
civil  power,"  while  the  20th  and  last  declares  that  "a  fre- 
quent recurrence  to  the  fundamental  principles  of  civil 
government  is  absolutely  necessary  to  preserve  the  bless- 
ings of  liberty." 

The  provision  as  to  habeas  corpus  could  as  well  be 
placed  under  the  article  upon  the  judicial  department. 


The  provision  in  the  i6th  section  that  no  soldier  shall 
be  quartered  in  any  house  without  consent  of  the  owner, 
etc.,  could  appropriately  be  placed  under  the  article 
headed  "militia." 

So,  too,  the  provisions  in  Article  V  in  respect  to  the 
veto  of  the  governor  could  as  well  be  placed  under  Arti- 
cle IV  relating  to  the  General  Assembly,  and  the  passage 
of  laws;  as  also  might  the  sections  in  said  Article  V  pro- 
viding for  the  adjournment  of  that  body  by  the  governor 
in  case  of  a  disagreement  between  its  two  constituent 
houses. 

Therefore  the  supposed  inhibition  against  amendmg  an 
article  bv  inserting  therein  anything  not  germane  to  its 
subject  fails  upon  analysis.  For,  first,  there  is  no  such  in- 
hibition expressed  (which  is  sufficient  in  and  of  itself) ; 
second,  there  is  no  declaration  of  one  distinct  techni- 
cal ''subject"  to  each  article;  and  third,  there  is  no  uni- 
form arrangement  of  "subject"  to  "article"  throughout 
the  entire  constitution  from  which  such  prohibition  might 
be  even  vaguely  inferred. 

As  to  this  supposed  requirement  in  question  which  we 
have  numbered  2  above,  it  must  not  be  forgotten  that  the 
draft  of  the  Civic  Federation  amendment  does  not  violate 
it  even  if  it  does  exist. 

If  it  be  said  that  the  general  "subject"  of  Article  X  is 
"Counties" — the  appellation  or  heading  ^lereof — cer- 
tainly the  said  amendment  relates  to  such  subject,  and  the 
various  specific  clauses  therein  are  fairly  conducive  to  an 
effective  scheme  of  consolidation. 

But  we  have  no  doubt  but  that  the  alleecd  requirement 
as  to  "one  subject"  and  "germaneness,"  etc.,  is  entirely 
imaginative  and  untenable. 


8 

3-  As  to  the  3rd  supposed  prohibition,  viz. :  that  any 
amendment  to  an  article  should  not  directly  or  indirectly 
amend  or  repeal  the  provisions  of  any  other  article: 

It  is  here  that  our  friends  seeking  to  give  a  stringent 
effect  to  the  limitation  in  question  become  boldest,  and  it 
is  that  that  is  the  specific  proposition  of  the  State  Bar 
Committee. 

There  is  no  expressed  inhibition  in  the  said  amend- 
ment section  against  an  amendment  to  one  article  amend- 
ing the  provisions  of  any  other  article.     Here,  too,  uur 
friends  can  onb-  supply  their  proposed  limitations  by  ^n 
ference. 

It  must  be  remembered  that  even  in  making  statute 
law  there  is  no  such  limitation.  An  amendment  to  the 
''revenue"  statute  can  validly  repeal,  either  expressly  or 
impliedly,  a  section  of  statute  on  ''counties"  or  "cities'* 
or  "fees  and  salaries."  The  requirement  as  to  one  "sub- 
ject," etc.,  has  no  application  to  repeal  by  implication. 
Geisen  v.  Heiderich,  104  111.,  537. 

And  what  can  be  repealed  impliedly  or  by  language 
unexpressed  can  be  repealed  expressly. 

These  rules  are  so  well  settled  and  the  instances  in 
which  they  have  been  applied  so  common  that  it  is  neces- 
sary only  to  state  them. 

So  if  our  friends'  3d  and  inferred  limitation  were  ad- 
hered to  it  would  cause  constitutional  amendments  to  be 
decidedly  more  narrow  in  scope  than  statutes. 

If  it  were  tenable  in  statute  law  it  would  be  pretty  hard 
to  see  just  where  the  limits  upon  legislative  action  lay; 
and  the  choice  of  remedies  in  most  instances  would  be 
decimated  or  so  reduced,  that,  taken  in  connection  with 
the  other  requirements  above  mentioned  as  to  germane- 


I 


ness  and  taken  also  in  connection  with  other  prohibitions, 
viz. :  that  laws  should  not  be  local  or  special,  etc.,  etc. — 
the  Legislature  would  be  apt  to  gradually  work  to  a 
"dead  stop." 

So  as  to  the  constitution.  Our  friends  would  restrict 
us  to  curing  one  at  a  time  the  many  sores  upon  the  i>ublic 
body  corporate  and  in  each  instance  make  us  hunt  fo" 
and  adopt  only  some  specific  which  could  afifect  no  oth.;r 
part  of  the  body  and  which  ct:»uld  be  proven  to  be  of 
peculiar  and  independent  origin.  What  this  might  lead 
to  is  not  hard  to  conceive. 


The  speaker  of  the  last  Assembly,  Hon.  Lawrence  Y. 
Sherman,  in  his  address  to  the  House  Committee  of  the 
Whole  upon  the  resolution  for  a  constitutional  conven- 
tion earnestly  urged  as  his  chief  reason  that  the  amend- 
ment plan  was  too  slow,  apparently  supposing  that  the 
limitations  thereon  were  as  strict  and  severe  as  the  three 
requirements  above  treated. 

He  said:  "If  I  could  vote  every  two  years  on  one  of 
the  amendments  wanted  by  the  Civic  Federation  alone,  I 
would  be  lOO  years  old  before  I  had  voted  on  the  last  of 
them."  He  then  mentions  a  number  of  other  Chicago 
bodies  "who  want  amendments  of  great  pith  and  mo- 
ment, and  we  can  think  up  a  few  amendments  here  in  the 
legislature." 

The  able  and  conscientious  advocate  had  probably 
never  used  his  legal  acumen  to  think  tliat  if  such  were 
the  case  it  was  an  overwhelming  argument  against  the 
proposition  that  such  a  pmhibition  l)eing  valid. 

If  it  took  50  or  30  years  to  cure  but  a  portion  of  the 
ills  which  had  grown  upon  the  body  politic  in  30  years, 
what  was  to  be  done  with  the  remainder?  And  what 
was  then  to  be  done  with  the  volume  of  tu'^v  ones  which 


lO 

had  sprung  up  in  the  meantime,  viz. :  during  the  second 
half  or  latter  part  of  50  or  60  years?  Such  evils  do 
not  grow  singly  on  account  of  gradually  increasing  con- 
tamination, and  these  new  ones  might  be  thrice  as  great  as 
the  others. 

How  long  would  the  race  continue?  How  long  would 
ic  take  for  municipal  disease  to  overcome  the  state  and 
work  her  dissolution? 

To'  calmly  contemplate  such  a  thing  is  suicidal. 

And  to  attempt  to  invite  the  state  to  a  convention  as 
the  other  alternative  is  little  more  kind  or  considerate. 

To  say  that  the  people  through  their  delegates  fettered 
themselves  from  developing  their  constitution  along  with 
their  growth,  from  which  handicap  public  evils  would 
necessarily  grow  and  intensify  and  get  a  great  start  of 
remedial  processes  and  gradually  grow  worse  and  worse, 
and  that  the  state  thus  diseased  must  be  deprived  of  a 
natural  and  orderly  remedy  unless  it  exposed  itself  to  all 
sorts  of  new  diseases  (occurring  from  vicious  and  possi- 
bly dominating  elements  in  convention),  is  to  convict  the 
state's  representatives  in  convention  of  the  same  suicidal 
intentions. 

What  is  there,  therefore,  of  benignity  and  usefulness 
in  such  limitations  which  should  impel  a  court  to  multiply 
in  effect  the  said  provision  and  add  tO'  the  restriction 
upon  amending  "one  article'*  at  a  time,  the  two  new 
ones,  1st,  that  such  amendments  must  be  ''germane"  to  a 
supposed  subject,  and  2nd,  must  not  in  effect  amend  any 
other  article  or  repeal  any  section  thereof. 

The  fact  is,  that  in  this  case,  as  in  the  limitations  upon 
statutes  above  mentioned,  the  whole  matter  is  one  of  con- 
venience. 

The  term  ''subject"  is  a  relative  term  as  here  used. 


II 

Laws  may  be  different  in  their  subject-matter  in 
a  sense.  A  law  regulating  the  taking  of  property  for 
public  use  has  little  resemblance  in  its  subject-matter  to 
one  entitled  "Fees  of  city  officers."  Yet  in  large  cities 
it  might  be  found  highly  desirable  that  certain  city  offi- 
cers should  constitute  a  body  to  value  land  taken  for  pub- 
lic use  (as  is  the  case  in  some  states),  and  that  the 
regulations  and  laws  in  regard  to  the  fees  of  such  officers 
be  radically  changed  to  meet  the  imposing  of  these  new 
duties. 

Such  a  law  which  in  providing  for  said  body  and  pre- 
scribing methods  of  procedure  under  "Eminent  Domain" 
would  thus  in  effect  repeal  or  amend  certain  provisions 
of  the  "Fees  and  Salaries  act,"  would  be  held  constitu- 
tional in  spite  of  the  expressed  limitations  above  referred 
to.  But  if  a  similar  proceeding  or  provision  therefor 
were  attempted  under  the  constitution  with  no  such  ex- 
pressed limitation,  our  careful  friends  say  it  would  be 
invalid. 

A  more  studied  and  deliberate  dissent  from  the  said 
opinion  given  the  Federation  as  to  the  scope  of  the  one 
amendment,  etc.,  is  contained  in  a  report  to  the  Illinois 
State  Bar  Association  made  the  present  year  (1902)  by 
the  special  committee  upou  the  "Expediency  of  Calling  a 
Constitutional  Convention,"  signed  by  Sigmund  Zeisler, 
Esq.,  and  four  other  members  of  that  body,  viz. :  Messrs. 
William  E.  Church,  Lester  H.  Strawn,  Logan  Hay  and 
James  M.  Sheean.  That  the  report  should  be  given  its 
full  weight,  pains  were  taken  to  state  at  the  outset  that 
"the  re|M:)rt  does  not,  as  is  sometimes  the  case,  express 
merely  the  opinion  of  the  chairman  of  the  committee,  but 
reflects  the  deliberate  judgment  of  the  members  signing 
the  same." 


12 

The  above  conclusion  in  said  opinion  is  set  out  in  full 
and  is  then  treated  of  as  follows : 

''Your  committee  believes  that  under  the  authority  of 
Wilson  V.  Board  of  Trustees^  cited  by  Mr.  Mecartney, 
an  amendment  of  one  article  of  the  constitution  may  inci- 
dentally have  the  effect  of  amending  a  provision  con- 
tained in  another  article.  But  we  do  not  believe  that  that 
case  is  an  authority  for  the  proposition  that  under  the 
guise  of  an  amendment  purporting  to  amend  only  one 
article,  provisions  may  be  smuggled  intO'  the  Constitution 
which  directly  change  one  or  more  other  articles  of  the 
Constitution.  Otherwise  it  would  be  a  very  easy  matter 
to  write  an  entirely  new  Constitution  in  the  shape  of  an 
amendment  purporting  to  amend  only  one  article.  Arti- 
cle X  of  the  Constitution  deals  with  the  organization  of 
counties  and  with  county  governmental  agencies.  As 
regards  the  administration  of  justice,  this  is  treated  by 
the  Constitution  as  a  separate  matter  in  Article  VI,  en- 
titled Judicial  Department.  This  latter  article  contains 
special  provisions  respecting  the  courts  of  record  of  Cook 
County  and  justices  of  the  peace  in  Chicago.  The 
framers  of  the  Constitution  thereby  clearly  indicated  a 
sharp  division  between  the  administration  of  law  even  in 
the  specially  singled  out  County  of  Cook  and  the  legis- 
lative and  executive  functions  of  government  even  in  the 
again  specially  singled  out  County  of  Cook.  A  provision 
for  the  consolidation  of  legislative  and  executive  govern- 
mental functions  within  the  County  of  Cook  or  some  part 
thereof  is  a  proper  amendment  of  Article  X.  Incident- 
ally it  amends  Section  22  of  Article  IV  forbiddmg  spe- 
cial legislation  as  to  county,  town  and  city  affairs.  To 
this  extent  it  must  be  upheld.  But  to  add  thereto  a  pro- 
vision resf^cting  the  abolition  of  justices  of  the  peace 
and  constables,  though  applicable   only    to    Chicago    or 


13 

Cook  County,  is  a  palpable  trick  U)  evade  the  prohibition 
ao^ainst  amending  more  than  one  article  at  the  same  time, 
because  such  a  '>rovision  does  not  incidentally,  but  di- 
rectly amend  Article  VI. 

"In  like  manner,  the  framers  of  the  C(jnstitution 
sharply  distinguished  the  matter  of  revenue,  an  incident 
of  which  is  the  incurring  of  debt,  from  all  other  govern- 
mental affairs,  and  treated  it  in  a  separate  article,  viz. : 
Article  IX.  Not  a  word  bearing  on  this  subject  can  be 
found  in  Article  X.  Any  provision,  therefore,  which  in- 
creases the  limit  of  Chicago's  debt  incurring  power  is  a 
direct  amendment  of  Article  TX,  notwithstanding  the  fact 
that  /;/  form  it  be  an  amendment  to  Article  X  by  being 
made  a  rider  on  an  amendment  which  is  germane  to 
Article  X. 

'Tor  these  reasons  we  regard  as  unwise  the  agitation 
for  the  amendment  proposed  by  Mr.  Mecartncy  and  en- 
dorsed by  the  Civic  Federation  of  Chicago;  if  adopted, 
we  believe  it  would  be  held  invalid  bv  the  Supreme 
Court.  Moreover,  this  amendment  ignores  the  balance 
of  the  state  which  is  deeply  interested  at  least  in  the  mat- 
ter of  obtaining  a  thorough  recasting  of  the  judicial  sys- 
tem. It  ignores  the  necessitv  for  fundamental  changes 
in  our  revenue  system.  It  takes  no  account  of  affirm- 
ative i^oz'entmental  principles  which  ougl^t  *•>  be  en- 
grafted upon  the  Constitution." 

It  would  seem  quite  clear  that  the.se  suggestions  do  not 
meet  those  al)ove  outlined. 

The  learned  gentlemen  put  clau.ses  into  the  amendment 
provision  which  clearly  are  not  there,  viz. :  language  to 
the  effect  that  an  amendment  of  an  article  must  relate  to 
the  subject-matter  of  that  article  (supposedly  the  mere 
heading  thereof)  and  must  not  affect  or  repeal  the  pro- 
visions of  other  articles. 


14 

So  far  as  the  possibility  of  "writing  an  entire  new 
constitution  under  the  guise  of  one  article,"  etc.,  is  con- 
cerned, it  may  be  observed  that  the  delegates  no^  doubt 
supposed  that  in  making  amendments  some  regard  tO'  ar- 
ticles and  arrangement  thereof  would  be  observed.  By 
dividing  the  constitutioii  into  "articles"  in  which  one  or 
more  general  subjects  were  treated,  and  requiring  that 
each  amendment  or  set  of  amendments  passed  at  each 
session  should  be  placed  under  one  article,  and  hence  that 
one  article  at  a  time  be  changed,  the  convention  thus 
placed  an  embargo  upon  making  inconsiderate  amend- 
ments. For  allowing  that  there  could  he  adopted  at  one 
time  a  number  of  amendments  variant  in  character  and 
wide  in  scope,  yet  if  this  practice  were  recklessly  indulged 
it  would  cause  the  constitution  ultimately  to  gradually 
become  a  substantially  different  document  in  form  or  to 
display  considerable  patchwork.  This  was  something 
which  would  naturally  be  avoided,  and  hence  changes  in 
the  principal  arrangement  of  the  constitution,  except 
where  necessary  or  vital,  were  thus  discouraged  or  dis- 
countenanced. 

Thus,  therefore,  a  definite  object  or  function  is  sub- 
served by  the  amendment  provision  if  we  give  it  simply 
all  its  expressed  meaning,  and  abstain  from  "inference." 

Secondly,  if  such  provision  did  not  operate  to  prevent 
the  people  from  "writing  an  entire  nev/  constitution  under 
the  guise  of  one  article"  it  is  not  perceived  that  great 
damage  would  be  done.  The  other  articles  or  sections 
thus  laid  aside  and  repealed  would  of  course  be  omitted 
from  the  published  constitutions  thereafter  with  no  great- 
er inconvenience  than  what  has  been  experienced  in  the 

past  by  the  action  of  legislatures  and  with  no  more  nov- 
elty than  that  exhibited  in  a  fashion  in  vogue  for  centu- 


ries.  Many  and  varied  existing  statutes  upon  "crimes," 
"misdemeanors,"  "forfeitures,"  etc.,  have  been  embraced 
in  one  statute  as  a  "criminal  code."  In  various  states 
complete  revisions  of  statutes  have  been  made  reducing 
them  in  volume  as  well  as  the  number  of  chapters,  and 
causing  a  gradual  change  in  the  arrangement  of  the  stat- 
utes as  published. 

Thirdly,  the  people  responsible  for  the  alleged  incon- 
venience, if  any  arose  from  writing  an  entire  new  consti- 
tution as  one  article,  would  be  the  people  affected  thereby. 

Fourthly,  if  by  giving  the  provision  all  its  expressed 
meaning  and  no  other  it  failed  of  any  definite  purpose,  or 
of  prohibiting  to  any  extent  any  certain  action,  there  is 
on  this  account  no  warrant  to  indulge  in  inferences. 

Instances  are  common  where  statutes  have  been  held 
to  be  mere  declarations  of  what  the  law  had  been  in  fact 
before  they  were  passed,  or  what  it  would  be  without 
them,  or  where  from  some  defects  in  their  drafts  or  from 
the  provisions  of  other  statutes,  their  effect  has  been 
void  or  valueless. 

No  doubt  occasionally  for  kindred  reasons  planks  in 
constitutions  have  been  found  to  be  equally  valueless. 

There  is,  therefore,  no  novelty  in  experience  to  be 
avoided  in  this  case  which  in  and  of  itself  would  warrant 
such  a  resort  to  "inference." 

Fifthly,  the  object  thus  sought  to  be  subserved,  viz. : 
avoiding  a  provision  in  the  constitution  which  fails  of 
effect  is  an  infinitely  less  object  than  the  one  which  would 
be  destroyed  by  its  fulfillment,  that  is  to  say.  avoiding 
the  alternative  of  either  preventing  the  orderly  develop- 
ment of  the  state,  or  putting  it  to  the  unnatural  and  ex- 
travagant crucial  expedient  of  having  its  whole  organism 
and  polity  hacked  over  in  convention. 


i6 

In  the  Wilson  case,  supra,  the  amendment  construed 
was  Section  31  of  Article  IV. 

The  new  matter  in  said  section  which  was  adopted  in 
1878  was  to  the  effect  that  ''the  General  Assembly  may 
provide  for  the  organization  of  drainage  districts  and 
vest  the  corporate  authorities  thereof  with  power  to  con- 
struct levees,  drains  and  ditches  and  keep  in  repair  all 
drains,  ditches  and  levees  heretofore  constructed  under 
the  laws  of  this  state  by  special  assessments  upon  prop- 
erty specially  benefited  thereby." 

Section  9  of  Article  IX  had  provided  that  the  General 
Assembly  may  vest  the  corporate  authorities  of  cities, 
towns  and  villages  with  power  to  make  local  improve- 
ments by  special  assessment,"  etc.  The  Supreme  Court 
had  ruled  that  this  provision  taken  in  connection  with 
other  language  in  the  section  was  a  limitation  upon  the 
power  of  the  Assembly  and  prohibited  it  from  vesting 
any  other  authorities  with  the  power  to  levy  special 
assessment,  e.  g.,  "drainage  district"  authorities. 

Therefore  said  amendment  placed  under  Article  IV 
directly  amended  Section  9  of  Article  IX,  by  removing 
the  ban  on  drainage  district  special  assessments. 

Yet  it  was  held  valid.  Justice  Scholfield,  who'  wrote 
the  opinion,  did  not  disting'uish  between  "direct"  and  "in- 
cidental" amendment,  however. 

He  held  that  of  course  the  Legislature  had  always 
had  the  power  to  create  drainage  districts  or  any  other 
kind  of  municipality  it  chose  to,  and  that  hence  the  pro- 
vision of  allowing  the  creation  of  drainage  districts  was 
merely  a  dry  declaration  of  what  it  could  have  done  in 
any  event.  The  provision  for  the  grant  of  the  power  of 
special  assessment  to  drainage  boards  was  the  main  and 


17 

principal  portion  of  the  amendment.     There    wa?    cer- 
tainly nothing  "incidental"  about  it. 

This  italicized  distinction  between  main  and  "inciden- 
tal" amendment  should  therefore  have  been  tested  more 
before  beinc:  launched  upon  the  public. 

And  there  seems  to  be  less  of  "smugglinir"  and  "palpa- 
ble trickery"  in  simply  giving  the  English  in  the  section 
in  question  its  plain  import,  than  in  entangling  the  people 
with  a  vcrv  net  of  prohibitions,  which  might  strangle 
their  municipal  life. 

What  the  five  gentlemen  are  each  here  driving  at  in 
their  said  individual  opinion  is  no  more  or  less  than  an 
attempt  to  distinguish  between  express  and  implied  re- 
peal. 

"Amend"  is  "to  make  a  change  or  changes  in  the  form 
of.  as  a  bill  or  motion,  or  a  constitution/'  (Century 
Dictionary.) 

Thus  if  we  amend  an  act  we  change-  the  form  of  it, 
the  language  of  it.  In  doing  this  we  can  expressly  re- 
peal the  provisions  of  another  act  or  a  part  of  them.  Or 
if  our  language  is  inconsistent  with  any  such  provisions 
the  former  will  be  to  the  extent  of  such  conflict  repealed. 
This  latter  is  a  case  of  repeal  by  implication. 

Rut  in  changing  the  form  of  one  act.  we  can  not  there- 
by change  the  form  of  another  act  any  more  than  by  the 
act  of  rolling  one  marble  wc  can  be  said  to  be  rolling 
two. 

The  word  "amend"  is  used  sometimes  in  the  sense  of 
repeal  or  a  change  in  substance.  And  so  used  it  would 
be  proper  to  say  there  were  two  kinds,  "express"  and 
"implied." 


i8 

Probably  our  friends  meant  this;  but  even  allowing 
them  these  two^  (as  it  is  thought)  more  accurate  terms, 
their  conclusions  stand  out  opposed  to  precedent  and 
practice  and  barren  of  logical  warrant. 

It  is  not  necessary,  however,  as  said  above,  to  nullify 
the  amendatory  provision  in  question  by  the  conclusion 
we  have  announced. 

It  can  be  given  effect  by  a  simple  observance  of  the  re- 
quirement that  all  amendments  submitted  at  one  session 
be  placed  under  one  article,  i.  e.,  amend  or  change  in 
form  but  one  article. 

That  this  direction  would  be  observed,  and  that  at  the 
same  time  the  arrangement  of  the  instrument  in  respect 
to  subject-matter  would  not  be  unnecessarily  disturbed 
and  involved  beyond  reasonable  bounds,  the  said  conven- 
tion had  to  and  no  doubt  did  trust  the  people  to  see  to. 

It  may  well  be  that  the  convention  supposed  it  had 
made  such  a  simple  (?)  instrument  that  it  would  be 
learned  ''by  heart"  by  every  judge,  lawyer,  citizen  and 
high  school  graduate;  and  that  amendments  thereio 
could  easily  be  kept  track  of  and  the  instrument  thus 
easily  preserved  in  the  public  memory  if  this  rule  of 
changing  one  article  at  a  time  were  observed. 

At  all  events  their  attempt  at  a  limitation  in  respect  to 
amendments  resulted  in  a  mere  matter  of  form  or  con- 
venience. 

When  it  is  recollected  that  the  constitution  consists  of 
nearly  tzvo  hundred  sections,  and  some  of  these  are  of 
complex  subject-matter,  it  was  quite  natural  that  some  at- 
tempt at  keeping  it  from  becoming  in  future  much  more 
complex  in  form  was  thought  of. 


19 

The  mainspring  of  doubt  in  the  niinrls  of  our  brethren 
in  this  matter  is  not  hard  to  trace. 

It  is  assumed  that  some  Hmitation  was  in  fact  intended 
by  the  framers  of  our  constitution. 

Said  doubt  has  its  origin  in  a  rehictance  to  do  what 
might  seem  hke  an  attempt  to  help  out  a  situation  by 
ignoring  legal  requirements.  The  idea  is,  that  while  the 
delegates  in  convention  may  possibly  have  said  some- 
thing which  meant  nothing,  yet  they  certainly  meant  to 
say  something  w'hich  meant  something,  and  hence  their 
wishes  should  be  respected  and  venerated. 

The  refreshing  innocence  in  this  willingness  to  bow  to 
the  inevitable  and  rather  than  even  lightly  disappoint  a 
few  ancestral  citizens,  to  pass  under  the  rod  of  progress- 
prohibited-except-at-the-snail's-pace,  is  not  to  be  despised. 
The  community  needs  more  of  it.  In  fact,  it  is  suffering 
from  a  dearth  of  it. 

But  as  lawyers  we  cannot  escape  the  responsibility  of 
finding  out  what  legal  clauses  mean,  and  this  through 
the  consideration  of  both  words  and  subject-matter. 

When  we  consider  clauses  in  the  constitution  we  must 
not  forget  the  nature  of  a  constitution  or  the  danger  of 
greatly  curtailing  power  to  change  it. 

The  fact  that  a  certain  construction  may  lead  us  to  ruin 
or  danger  of  ruin,  is  a  great  factor  in  1  elj)ing  us  to  select 
a  construction  where  words  :.re  vague,  or,  as  in  this  case, 
in  keeping  us  from  extending  language  beyond  its  ex- 
pressed import,  or  from  "construing  into"  the  constitu- 
tion words  which  are  not  there. 

And  between  recognizing  that  our  friends  of  a  former 
generation  may  have  made  one  mistake  and  attributing 
to  them  an  intent  to  work  us  dire  evil,  we  choose  the 
former  with  alacrity. 


20 

That  Illinois  should  flounder  forever  in  impotent  at- 
tempts to  extricate  herself  from  a  tightening  net  of  in- 
hibitions against  progress,  or  to  be  released  therefrom 
only  upon  condition  that  she  bring  all  her  cardinal  forms 
and  principles  of  government  into  actual  or  technical 
chaos  and  prove  to  herself  her  ability  to  re-extract  the 
good  ones  while  taking  grave  chances  in  reaching  out  for 
something  new,  presents  an  alternative  which  cannot  be 
lightly  treated,  or  from  which  we  cannot  run  away.  If 
we  approach  this  threatening  monster  courageously  we 
will  find  it  to  be  only  a  retreating  apparition. 

To  always  allow  vaguely  worded  clauses  to  have  a 
definite  meaning  is  to  assert  that  language  is  unnecessary 
to  express  laws  and  regulations,  or  that  a  reviewing  body 
can  always  guess  at  unexpressed  meaning.  (Vague  or 
meaningless  terms  would  thus  be  placed  upon  a  par  with 
or  above  clearly  expressed  ones.) 

If  we  had  the  power  to  do  this  we  could  dispense  with 
courts  and  lawyers ;  but  to  assume  it  would  be  to  attempt 
to  jump  beyond  human  limitations  or  environment. 

If,  therefore,  an  attempt  had  been  made  by  the  use  of 
language  to  add  the  requirements  numbered  2  and  3  above 
or  limitations,  and  the  same  had  not  been  clearly  ex- 
pressed, the  contention  is  that  it  would  be  nugatory  un- 
aer  a  strict  construction  to  which  it  would  necessarily  be 
subject. 

But  in  this  instance  our  friends  have  gone  entirely  be- 
yond the  medium  of  language  to  whisper  what  was  in  the 
minds  of  the  individual  lawmakers  of  a  third  of  a  century 
ago! 

If,  therefore,  the  constitution  contained  the  same  limi- 
tation upon  amendments  to  the  instrument  itself  as  the 
ones  which  it  fastens  upon  the  legislative  in  the  passage 
of  bills  it  would  be  very  narrow  in  application.     We  have 


21 

little  hesitancy  in  saying  that  if  it  were  found  to  obstruct 
the  orderly  development  of  the  state  and  severely  dwarf 
its  growth,  or  to  draw  heavily  upon  the  public  wealth, 
health,  prosperity  or  general  good,  it  would  be  held  void 
and  ineffective,  or  that  it  was  not  applicable  to  such  extra- 
ordinary case;  and  that  a  measure  which  it  was  seen 
would  relieve  the  public  ills  would  be  lifted  in  the  eyes  of 
any  competent  court  to  the  plane  of  a  police  law  and  be 
sustained,  in  spite  of  any  letter  conflict  between  it  and 
such  provisions. 

Great  crises  justifv  heroic  action.  Grave  sub- 
jects demand  wide  discretion  in  handling  them.  Solemn 
instruments  demand  broad  views  of  their  subject-matter. 
When  the  choice  of  instruments  is  denied  the  only  surgeon 
who  can  cure  a  fatal  malady,  he  must  exercise  a  full  dis- 
cretion in  using  that  one  which  is  given  him.  In  exe- 
:uting  an  order  to  enter  all  buildings  one  must  except 
diose  which  are  found  to  be  simply  coverings  to  fathom- 
less pits. 

All  this  is  not  ''evasion"  or  "subterfuge"  or  ''palpable 
irickery''  or  "smuggling,"  etc.  It  simply  proves  that 
life  has  its  responsibilities,  which  can  not  be  escaped;  and 
that  either  to  "infer"  embargoes  upon  progress  or  to 
blindly  deny  languag:e  any  but  the  one  meaning  when 
applied  to  subject-matters  as  variant  as  the  plants  of  the 
earth  is  possibly  to  mar  the  wisest  plans  for  man's  ad- 
vancement or  for  his  redemption  from  misery. 

This  is  what  Gibson,  the  ablest  of  Pennsylvania  judges, 
meant  when  he  said:  "A  constitution  is  not  to  receive  a 
technical  construction  like  a  common  law  instrument  or 
statute.  *  *  *  It  is  to  be  interpreted  to  carry  out 
the  great  principles  of  goven.ment.  ""♦  ■'>  defeat  them." 

The  subject-matter  of  a  constituiiun,  as  said  !>cfore. 
is  variant.     Each  clause  must  be  considered  with  refer- 


22 

ence  to  its  subject-matter  and  the  department  ci  govern- 
ment to  which  it  relates.  That  is,  the  constitution  is  to 
be  regarded  as  a  grant  to  the  courts,  but  a  limitation  up- 
on the  legislature.  This  particular  section  was  expressly 
held  to  be  a  limitation  in  the  Wilson  case,  and  this  has 
never  been  open  to  serious  question. 

In  construing  a  particular  clause  of  a  constitution 
which  is  in  doubt,  the  debates  in  convention  are  some- 
times used  by  the  courts  to  aid  in  ascertaining  what 
was  intended. 

This  practice,  however,  is  to  be  cautiously  followed 
and  is  very  narrow  in  application. 

In  case  a  term  used  be  vague  or  its  exact  significance 
is  not  known  to  the  court,  or  it  is  one  of  particularly 
local  meaning,  it  would  seem  natural  and  perhaps  neces- 
sary to  look  to  the  debates  to  ascertain  that  it  had  an  ac- 
cepted meaning,  and  what  that  meaning  was. 

In  a  test,  however,  of  the  mere  extent  or  application  of 
a  provision  the  terms  of  which  are  clear  and  of  universal 
significance,  and  which  could  be  given  some  effect  without 
resort  to  such  means,  it  would  be  unsafe  to  rely  upon 
the  expressions  of  the  members  who  might  have  chosen 
to  speak  upon  the  subject.  In  construing  a  mere  pro- 
vision for  a  method  of  procedure  such  course  would  be 
particularly  treacherous.  Some  members  might  have 
thought  the  limitations  stringent  and  others  might  have 
thought  them  liberal  or  light.  On  this  there  might  be  a 
wide  difference  of  opinion. 

The  speaking  members  are  not  necessarily  the  safer 
judges.  And  many  a  vote  ''aye"  might  have  been 
prompted  by  the  individual's  opinion  that  after  all  the 
clause  or  section  proposed  would  not  have  the  effect  its 
proponents  supposed  that  it  would. 


-^3 

Resort,  therefore,  to  constitutional  debates  should  be 
an  exceedingly  cautious  practice,  and  is  not  applicable  to 
a  case  of  this  kind. 

We  have,  however,  examined  the  debates  of  the  con- 
vention of  1870  and  find  scarcely  one  reference  to  this 
amendment  provision. 

It  seems  to  have  been  borrowed  from  the  constitution 
of  1848,  and  it  has  never  been  construed  by  the  Supreme 
Court,  no  test  case  having  arisen. 

Nor  is  this  a  case  where  other  "extrinsic  aids"  can  be 
resorted  to.  There  are  no  vague  terms,  etc.,  to  be  inter- 
preted. The  provision  means  just  v/hat  it  says  and  no 
more. 

Extrinsic  aids,  such  as  the  object  to  be  attained,  the 
mischief  to  be  remedied,  cotemporaneous  history,  the  cir- 
cumstances attending  the  formation  of  the  constitution, 
the  convention  debates,  etc.,  "can  be  resorted  to  otily 
where  doubt  exists  which  it  is  impossible  to  solve  from  an 
inspection  of  the  instrument  itself/'  or  where  the  "text 
is  obscure  or  ambiguous."  But  "they  are  powerless  to 
vary  the  terms  of  the  constitution." 

Am.  &  Eng.  Ency.  Law,  2d  Ed..  Vol.  6.  pp.  929. 
930,  and  cases  cited. 


24 


II. 


Even  if  the  rule  of  "  germaneness  "  obtained,  the  draft 
of  amendment  annexed  comes  well  within  it,  and 
would  be  valid. 

The  question  occurs  here:  Apart  from  all  questions 
of  statutory  limitations  as  to  ''one  subject,"  etc.,  did  not 
the  convention  intend  that  such  should  be  the  test  as  to 
the  validity  of  amendments?  Did  it  not  in  limiting 
amendments  to  one  article  mean  the  subject  of  that  article 
and  not  merely  the  form  of  it. 

The  first  answer  which  arises  in  answer  to  this  is  an- 
other question,  viz. :    If  it  meant  it,  why  did  it  not  say  it? 

And  this  becomes  infinitely  more  important  when  we 
are  applying  a  strict  construction,  which  must  never  be 
forgotten  for  a  moment. 

The  word  "article"  might  as  well  be  ''division"  or 
"paragraph."  It  is  itself  a  form.  To  change  an  article 
of  the  constitution  is  to  amend  a  thing  of  form.  To 
amend  is  "to  change  the  form  of."  We  have  therefore 
nothing  left  but  form.  The  form  or  heading  is  as  dis- 
tinct from  the  subject  as  a  fence  from  the  cattle  in  the 
field  or  from  the  patch  of  earth  which  it  encloses. 

A  direction  that  the  fences  around  one  field  only  can 
be  changed  at  a  time  does  not  mean  that  no  new  ground 
can  be  taken  in,  or  that  soil  of  a  different  character  must 
be  excluded. 

But  let  us  for  the  sake  of  argument  assume  that  the 
subject-matter  of  our  amendment  must  be  "germane" 
to  the  subject  of  the  article,  then  the  question  comes  up: 
Does  "subject"  as  here  used  mean  only  the  first  heading 


25 

of  the  article,  or  does  it  mean  any  of  the  varied  and  sub- 
divided subjects  in  each  section  or  each  sentence  thereof? 
If  it  means  the  latter,  it  is  easy  to  see  that  the  constituticjn 
may  be  said  to  be  divided  into  as  many  subjects  as  there 
are  s<.ntences. 

I>ut  any  one  who  attempts  to  look  upon  the  consti- 
tution as  composed  of  separate  items  or  as  a  collection 
of  separate  objects  as  he  would  view  a  bundle  of  fagots, 
will  not  hold  his  conception  long.  Subjects  if  looked  at 
long  enough  seem  to  fade  into  each  other,  like  the  waves 
of  the  sea.  For  one  instant  they  seem  distinct, 
but  in  the  next  they  have  disappeared.  In  covering  the 
field  of  general  public  welfare  the  constitution  reveals 
divisions  like  waves  upon  the  sea;  as  something  is  put 
into  the  constitution  and  drawn  from  it,  it  in  a  measure 
unsettles  parts  other  than  the  sections  actually  changed. 
To  say  that  you  shall  not  disturb  one  wave  by  drawing 
from  another  is  to  say  that  you  shall  not  touch  the  con- 
stitution at  all. 

But  we  will  not  have  to  meet  the  question  of  whether 
or  not  the  supposed  rule  of  germaneness  is  to  be  tested  by 
the  "heading"  subject  or  by  the  minor  ones  specified  in 
particular.  For  we  are  dealing  with  a  county;  and 
"counties"  is  the  heading  of  the  article  under  which  this 
amendment  is  placed.  And  it  cannot  be  said  that 
Cook  County  cannot  be  validly  treated  under  that  head- 
ing, because  it  has  already  been  so  treated.  Section  7 
of  such  article  provides  how  the  **afifairs  of  Cook  County" 
shall  be  managed.  Section  9  creates  special  offices  for 
Cook  County  and  makes  special  provisions  applicable 
thereto.  Hence  "Cook  County  affairs"  is  germane  to  the 
article  on  "Counties."  because  in  treating  of  such  affairs 
we  are  treating  of  a  county;  secondly,  because  the  consti- 


26 

tution-makers  themselves  have  set  the  example  in  treat- 
ing them  as  such;  and,  thirdly,  it  is  germane  to  one  of 
the  specific  subjects  in  said  article,  because — well,  be- 
cause such  is  one  of  its  subjects. 

The  only  question  left,  therefore,  is :  Is  this  amend- 
ment and  its  specific  provisions  germane  to  "the  affairs 
of  Cook  County?" 

A  division  of  Cook  County  and  a  consolidation  of  a 
part  of  Cook  County  v^^ith  cities  and  other  municipalities 
in  it  is  the  primary  object  of  this  amendment.  There  is 
nO'  special  article  in  the  constitution  upon  "cities."     If 

it  is  proposed  to  consolidate  the  county  with  the  city 
(wholly  or  partly),  it  is  just  as  appropriate  to  put  the 
amendment  under  counties  as  it  would  be  to  put  it  under 
"cities,"  if  there  zi^as  a  special  article  thus  labeled.  Any- 
thing that  is  fairly  germane  to  a  scheme  of  consolidation 
or  a  division  of  the  county  could  be  as  appropriately 
placed  under  counties  as  under  any  other  article  —  it 
would  still  be  germane  to  the  subject  treated. 

The  provisions  for  submitting  the  consolidation 
scheme  to  a  vote,  the  directions  as  to  providing  county 
government  in  the  remaining  territory,  and  the  provision 
for  an  increase  of  debt  of  the  City  of  Chicago  (in  order 
to  correspond  with  the  increased  functions  thrown  upon 
said  city  by  the  adoption  of  the  scheme)  are  all  absolutely 
germane;  and  this  without  question. 

The  provision  for  abolishing  justices  of  the  peace  and 
constables  in  said  city  is  likewise  so,  and  for  this  reason : 
The  jurisdiction  of  justices  and  constables  now  extends 
throughout  the  county,  namely,  over  both  a  city  and 
country  district.  If  the  county  were  divided  it  would  ex- 
tend only  over  a  city  district.     Every  one  concedes  that 


27 

this  petty  judicial  system  is  not  well  adapted  to  such 
a  district,  that  is,  every  one  advocating  their  abolishment — 
and  this  is  a  legislative  question  which  the  courts  cannot 
inquire  into  here.  Every  one  likewise  concedes  that  it  is 
well  adapted  to  a  country  district.  There  might  be  doubt 
as  to  whether  or  not  you  would  abolish  justices  of  the 
peace  when  their  jurisdiction  extended  over  a  ''fit"  dis- 
trict and  an  ''unfit"  one.  but  no  question  about  it  when 
it  would  simply  cover  the  latter. 

The  same  is  true  as  to  the  provision  in  respect  to  the 
districts  where  selling  liquor  is  prohibited.  The  consti- 
tution-makers might  validly  provide,  in  their  wisdom, 
either  that  in  the  consolidated  city  there  should  be  no 
liquor-selling  or  that  it  should  not  extend  into  the  dis- 
tricts at  present  free  from  it. 

But  there  is  still  another  conclusive  reason  why  the 
various  features  of  this  amendment  are  all  germane  to 
the  subject  in  hand,  viz. :  This  amendment  covers  a  terri- 
tory, viz. :  Cook  County.  No  matter  whether  it  were 
headed  or  labeled  "Provisions  for  the  local  government 
of  the  territory  now  comprised  within  Cook  County,"  or 
"Cook  County  affairs,"  or  "Cook  County,"  there  is 
scarcely  anything  that  is  local  to  that  territory  or  any 
part  of  it.  that  could  not  be  put  therein;  or  anything  that 
could  be  made  local  or  special  to  it. 

In  j)roviding  for  annexation  or  consolidation,  it  is 
proper  enough  to  except  in  the  act  certain  functions  or 
territory  which  would  otherwise  be  included.  It  is  just 
as  a|)propriate  to  reserve  liquor  free  districts  as  to  pro- 
vide special  limitations  as  to  the  character  of  the  build- 
ings in  annexing  a  populated  district  to  a  city.  An  act 
of  the  legislature  annexing  Hyde  Park  to  Chicago  and 
providing  that  certain  building  regulations  of  the  city 


28 

should  not  be  in  force  in  the  annexed  district,  or  that 
the  city  election  law  should  not  be  used  therein,  might 
be  held  bad  as  special  legislation,  etc.,  but  never  on  ac- 
count of  having  two  subjects,  or  because  the  exceptions 
were  not  germane  to  the  act.  As  well  say  that  an  act 
granting  a  forty-acre  tract  to  be  appurtenant  to  the  ex- 
ecutive mansion,  excepting  that  four  acres  thereof  were 
to  be  used  for  temporary  hospital  purposes,  was  invalid 
for  this  reason. 

Supposing,  after  the  providing  for  the  bill  of  rights 
and  the  frame  of  government  and  state  officers  and  gen- 
eral state-wide  interests,  etc.,  the  constitution  had  made 
districts  throughout  the  state  for  all  local  government, 
as  they  did  in  several  instances  for  judges,  etc.  In  such 
case  anything  relating  to  courts,  clerks,  sheriffs,  special 
assessment  and  finances,  etc.,  peculiar  to  each  district 
could  appropriately  and  ''germanely"  be  placed  under 
the  article  or  section  relating  to  such  district. 

The  suggestion,  however,  comes  up  that  if  you  do  this 
by  amendment,  you  might  be  radically  repealing  or  clip- 
ping down  provisions  of  other  articles.  But  we  are  not 
concerned  with  this,  for  we  have  already  shown  that  we 
can  thus  repeal,  expressly  or  impliedly,  and  it  is  imma- 
terial whether  we  repeal  much  or  little. 

Hence,  the  conclusion  is,  that  even  under  the  rule  of 
"germaneness,"  ''Cook  County  affairs"  has  been  specially 
made  by  the  constitution,  or  Cook  County  has  been  spe- 
cially singled  out  by  the  constitution,  as  a  district  of  its 
oimi  which  can  be  separately  treated.  And  that  being  so, 
there  is  no  limit  to  what  may  be  validly  put  in  the  con- 
stitution so  long  as  its  operation  is  confined  to  that  county 
or  any  of  its  parts. 

If  this  were  a  statute,  the  provision  in  regard  to  non- 


29 

liqiior-selling  districts  or  a  similar  provision  could  val- 
idly be  placed  in  the  article  on  "cities,  villages  and 
towns,"  and  in  a  section  providing  for  "change  of  boun- 
daries," or  "consolidation  of  cities."  etc. ;  and  there  is  no 
question  but  that  the  courts  would  construe  it  as  a  valid 
part  of  an  act  so  labeled. 

Upon  this  rule  of  germaneness,  even  as  applied  to 
statutes,  the  courts  give  a  very  wide  and  liberal  inter- 
pretation. To  do  otherwise  would  dimply  be  narrowing 
the  legislative  field  to  a  succession  of  channels  and  crev- 
ices in  which  it  could  flounder  around  and  do  little  or  no 
good.  To  place  it  in  the  constitution  and  then  narrow 
it  would  be  a  definite  challenge  to  the  state  to  grow ;  but 
in  the  grozving  do  not  change.  * 

Nor  can  it  be  said  that  even  though  this  limitation 
upon  amendments  may  greatly  hamper  the  people  in 
making  constitutional  changes,  yet  the  convention- 
framers  provided  for  a  convention  which  could  give  all 
relief  wanted  in  any  case,  and  hence  intended  the  limi- 
tation to  be  narrow. 

But  the  fact  that  these  men  provided  for  both  amend- 
ments and  convention  does  not  change  the  nature  of 
either,  or  cause  the  poiver  to  make  amendments  to  be 
less  vital;  or  make  the  convention  a  less  radical  or  cru- 
cical  expedient  (or,  as  in  the  case  of  a  "going"  state,  a 
less  unnatural  one). 

This  suppo.sed  rule  of  germaneness  obtains  nowhere 
else  than  in  such  states  as  have  a  similar  provision  to  ours 
in  the  constitution.  And  all  such  express  provisions  ap- 
ply to  statutes  only.  Had  such  a  limitation  on  statute- 
making  never  been  inserted  in  our  constitution,  no  one 
would  dream  of  raising  it  here-  It  is  the  habit  of  testing 
statutes  by  them  which  we  carry  with  us  for  the  time 


30 

being  when  we  approach  a  study  of  this  plank  in  the 
constitution. 

We  must  rid  ourselves  of  this  and  see  that  the  field  for 
constitutional  changes  is  naturally  as  broad  as  it  ever 
was ;  that  to  attempt  to  contract  it  in  the  manner  claimed 
would  be  a  serious  matter.  That  any  attempt  at  doing 
so  must  be  strictly,  very  strictly^  construed.  And  it  is 
hard  to  see  how  under  an  ordinarily  strict  construction 
we  can  drag  this  modern  ?nd  unexpressed  rule  into 
service. 

It  is  at  the  vital  points  that  language  is  usually  uncer- 
tain. But  we  must  not  in  a  laudible  desire  to  attribute 
a  purpose  to  language,  hold  to  the  language  and  forget 
the  vitals.  The  convention-makers  probably  never 
studied  carefully  to  see  how  far  limitations  upon  amend- 
ments might  reach.  If  they  had,  they  probably  would 
never  have  attempted  anything  so  strict.  However  that 
may  be,  we  will  give  force  to  what  they  expressed  and 
eliminate  the  rest. 


in. 


The  limitation  as  to  amoiidmoiits  In  question  here  do 
not  apply  to  the  portions  of  the  const itudon  other 
than  the  articles;  and  do  not  prohibit  addiiiy:  new 
articles  to  said  instrunieni. 

1.  W'c  have  above  referred  to  the  "separate  sect'ons** 
of  the  constitution  which  are  set  forth  in  the  body  of  the 
instrument,  but  which  are  not  part  or  parcel  of  any  'arti- 
cle" therein.  They  are,  however,  as  much  a  part  of  the 
constitution  as  any  of  its  articles.  Said  sections  were 
originally  three  in  number,  one  relating  to  the  Illinois 
Central  Railroad;  another  to  prohibition  upon  subscrip- 
tions by  municipalities  to  railroads  and  other  private  cor- 
porations; and  the  last,  to  the  Illinois  and  Michigan 
Canal. 

A  fourth  in  respect  to  "convict  labor"  was  proposed 
by  amendment  and  adopted  by  the  people  in  1886. 
Inhere  is  no  prohibition  in  the  article  on  "Amendment" 
against  adding  "separate  sections"  without  numl)er  to 
these  four;  and  the  subject-matter  of  any  added  sections 
might  be  as  varied  and  incongruous  as  that  of  the  four 
already  in  the  instrument. 

A  "separate  section"  or  a  numl)cr  of  them  in  reference 
to  a  new  county  to  be  called  the  "County  of  Chicagt^"  and 
containing  whatever  was  pertinent  to  municipal  affairs 
therein  to  be  added  bv  the  amendment  method  could  not 
be  called  unconstitutional.  There  is  nothing  which  can 
be  pointed  to  to  prove  it  so. 

2.  So  too  as  to  the  "Schedule"  of  the  constitution. 
The  ordinary  function  of  a  schedule  to  a  constitution  is  to 


I 


32 

make  provision  for  its  taking  effect  a2id  to  save  rights 
from  lapsing  and  tO'  prevent  inconvenience,  etc.,  during 
transition  from  the  old  to  the  new  order  of  things. 

Yet  it  has  frequently  been  used  also  as  a  sort  of  scoop 
to  gather  up  at  the  pre-adjournment  session  a  few  matters 
of  vital  import  forgotten  bv  the  convention  while  framing 
up  the  main  body  of  the  instrument.  Jameson  after  re- 
marking (Constitutional  Conventions,  p.  96)  that  such 
vital  provisions  have  no  proper  place  in  the  schedule,  says  : 
"It  is  more  perhaps  a  sense  of  logical  completeness  and 
or'der  than  substantial  propriety  which  is  offended  by  such 
provisions."  (There  is  here  not  even  the  suggestion  of 
invalidity.)  *'But  if  a  schedule  is  a  proper  sub- 
division of  a  constitution  it  should  be,  not  in  the  nature  of 
a  labor-saving  postscript,  made  at  the  expense  of  clear- 
ness and  finish,  but  of  an  appendix,  in  which  to  gather 
provisions  of  a  temporary  and  miscellaneous  character, 
related  to  the  instrument  in  the  main  only  as  subservient 
to  its  general  objects." 

Now  the  schedule  of  our  present  constitution  has  in  it 

this  provision : 

"Sec.  24.  Nothing  contained  in  this  constitution 
shall  be  so-  construed  as  to  deprive  the  General  As- 
sembly of  power  to  authorize  the  City  of  Quincy  to 
create  any  indebtedness  for  railroad  or  municipal 
purposes,  for  which  the  people  of  said  city  shall  have 
voted,  and  tO'  which  they  shall  have  given,  by  such 
vote,  their  assent,  prior  tO'  the  13th  day  of  December, 
A.  D.  1869.  Provided,  that  no  such  indebtedness  so 
created,  shall  in  any  part  thereof  be  paid  by  the  state, 
or  from  any  state  revenue,  tax  or  fund,  but  the  same 
shall  be  paid,  if  at  all,  by  the  said  City  of  Quincy 
alone,  and  by  taxes  to  be  levied  upon  the  taxable 
property  thereof.  And,  provided,  further,  that  the 
General  Assembly  shall  have  no  power  in  the  prem- 
ises that  it  could  not  exercise  under  the  present  con- 
stitution of  this  state." 


I 


, 


33 

This  provision  is  as  much  a  pan  of  the  constitution  as 
any  one  of  the  fourteen  articles.     It  could,  as  well  as  any 

one  of  such  articles,  of  course  he  amended. 

Suppose  a  provision  relating^  t(;  a  special  charter 
for  the  City  of  Quincy  were  framed,  voted  on  and 
adopted,  which  purported  in  form  to  amend  this  section, 
changing  a  part  of  it  and  adding  much  to  it.  Would  any 
court  pronounce  it  invalid? 

Or  suppose  an  entire  new  section  be  added  to  such 
schedule,  in  reference  to  the  ''City  of  Chicago" — it  would 
be  as  appropriate  as  to  place  the  affairs  of  Chicago  in  the 
schedule  as  those  of  Ouincy — why  would  it  not  be  prop- 
erly and  validly  a  part  of  the  constitution? 

If  it  conflicted  with  other  sections  the  latter  to  the  ex- 
tent of  such  conflict  would  l>e  repealed. 

The  rule  here,  as  in  statute  law,  is  that  later  provisions 
(that  is  later  adopted  provisions)  prevail  over  and  repeal 
earlier  ones  inconsistent  therewith. 

6  Am.  &  Eng.  Ency.,  2d  Ed.,  Vol.  6,  p.  927. 

3.  Or  suppose,  as  was  suggested  by  a  late  editorial  in 
the  "Chicago  Evening  Journal."  that  it  was  thought  l)est 
to  add  a  new  and  complete  article  to  the  constitution  in 
reference  to  ''Chicago."  What  warrant  would  therr  N- 
for  a  court  declaring  it  invalid? 

If  permissible  to  add  new  articles  to  the  constitu- 
tion (and  our  friends  have  nowhere  pointed  out  an  in- 
hibition against  it),  there  is  no  limit  as  to  what  shall  be 
inserted  therein,  whether  it  is  strictly  new  matter,  as.  for 
instance,  an  article  on  "Labor  and  Capital,"  or  in  addi- 
tion as  many  subjects  as  might  l>e  desired,  and  as  variant 
as  the  contents  of  the  "Bill  oi  Rights."  the  ''Separate  Sec- 
tions" or  the  "Schedule." 


34 

Conclusions. 

Our  conclusions,  given  out  in  thorough  confidence, 
are: 

1.  It  is  clear  and  settled  beyond  controversy  that  the 
provision  ts  to  amending  one  article  at  a  time  is  a  limita- 
tion upon  the  power  of  the  General  Assembly;  and  that 
all  such  provisions  are  to  be  construed  strictly.  This 
provision  is  even  more  than  such  a  mere  limitation,  viz. : 
a  limitation  upon  the  making  of  limitations  by  the  As- 
sembly and  a  curtailing  of  the  power  of  the  people  over 
themselves.  There  is  not  the  slightest  warrant,  there- 
fore, for  extending  by  construction  the  provision  beyond 
its  plain  language. 

2.  The  only  expressed  limitation  upon  amendments 
which  may  be  proposed  at  one  session  of  the  Assembly 
is  that  they  shall  purport  to  amend  {or  ''change  in 
form")  but  one  article. 

3.  There  being  no  expressed  requirement  that  all 
such  amendments  shall  relate  to  but  one  subject  (as  in  the 
case  of  statutes)  such  amendments  may  be  variant  in 
subject-matter  if  the  Assembly  shall  choose  to  make  them 
so. 

4.  Nor  can  it  be  said  that  by  implication  or  inference 
it  was  intended  that  amendments  to  one  article  should 
be  germane  to  the  "subject"  of  that  article;  for 

1st.  There  is  no  declaration  in  the  constitution  estab- 
lishing a  given  "subject"  to  each  or  any  article. 

2nd.  Nor  is  there  any  uniform  plan  or  arrangement 
extending  throughout  the  14  articles  from  which  one  dis- 
tinct "subject"  to  each  article  is  to  be  inferred;  for 

a.     The   "headings"    to   various   articles   are   only 


35 

labels  for  convenience;  and  in  some  articles  there  arc 
a  number  of  them  of  equal  prominence  in  siz2  of  type, 

etc. 

\  b.     Some  of  the  articles  are  quite  variant  in  subject- 

I  matter — have  several   ''subjects'* — and  some  of  these 

arc  not  distinguishable  from  subjects  in  other  articles. 

5.  Even  if  there  were  such  a  requirement  as  to  ''sub- 
ject" and  "germaneness,"  etc.,  yet  there  is  no  prohibition 
against  an  amendment  to  one  article  amending  any  other 
article  or  its  provisions.  (Such  a  one  would  be  proba- 
bly too  stringent  to  be  sustained  by  the  courts  if  it  existed 
in  form.)  To  "imply"  or  "infer"  the  latter  would  be 
causing  constitutional  changes  with  no  such  expressed 
prohibition  to  be  far  more  narrow  in  scope  than  statutes 
with  the  two  expressed  prohibitions  referred  to  ab<^n'e. 

6.  To  "imply"  or  "infer"  broader  limitations  than 
the  ones  expressed  in  the  constitution,  might  lead  (we 
might  even  say  zcill  lead)  to  disastrous  or  distressful  re- 
sults, the  intention  to  foster  which  is  not  to  be  attributed 
to  the  framers  of  the  constitution. 

7.  The  amendment  heretofore  proposed  by  the  Civic 
Federation  is.  however,  "germane"  to  the  subject  "Coun- 
ties '  the  heading  of  Article  X  under  which  it  is  placed; 
and  it  is  also  germane  to  one  or  more  of  the  si>ecific  sub- 
jects treated  in  said  article,  being  in  fact  one  of  them, 
viz.,  "Cook  County  affairs." 

8.  Such  an  amendment  could  l>c  added  to  the  "sepa- 
rate sections"  of  the  constitution  with  no  danger  of  its 
being  held  void ;  or 

9.  It  could  l^e  inserted  in  the  ''Schedule"  with  equal 
safety  (although  it  would  be  oddly  placed  in  such  case) ; 
or 

10.  It  could  be  as  well  embraced  in  a  separate  "arti- 
cle." 


3^ 


PART  IT. 

As  to  the  vital  nature  of  the  power  of  amending  State 
Constitutions;  and  suggestions  showing  why  limita- 
tions thereon  should  be  subject  to  strict  construction. 

It  is  thought  that  the  above  and  foregoing  suggestions 
are  amply  sufficient  to  support  of  the  conclusions 
reached.  But  the  following  is  added  by  way  of  con- 
firmation and  added  emphasis. 

It  was  asked  in  the  "Journal"  editorial  above  referred 
to  and  has  often  been  asked,  Has  one  generation  the 
power  to  bind  another  in  this  manner,  i.  e.,  by  limiting 
the  power  to  change  the  constitution  ? 

In  one  sense,  no. 

The  state  exists.  With  no  constitution  whatsoever  it 
would  still  exist.  But  it  could  only  continue  to  exist  un- 
der some  organization  which  would  be  tacitly  accepted 
by  the  people,  or  forced  by  sheer  military  power.  As  the 
state  has  existed  now  for  over  three-quarters  of  a  cen- 
tury in  such  case  it  would  no  doubt  be  held  that  by  force 
of  custom  alone  it  was  radically  constituted  by  and  di- 
vided into  the  three  chief  departments,  each  with  the 
powers  long  attributed  to  and  exercised  by  it. 

So,  too,  the  bill  of  rights  and  all  fundamental  rights 
of  citizens  as  enjoyed  by  them  for  centuries  would  no 
doubt  be  upheld  by  common  consent  and  enforced  by  our 
courts  as  imbedded  in  our  state  polity  and  as  belonging 
to  citizenship  itself. 

Mr.  James  Bryce,  in  his  work,  "American  Com- 
monwealth," says  (p.  464)  : 


jn' 


37 

"One  could  well  imagine  the  several  state  governments 
working  without  fundamental  instruments  to  control 
them.  Each  American  state  might  now,  if  it  so  pleased, 
conduct  its  own  business  and  govern  its  citizens  as  a  com- 
monwealth at  common  law,  with  a  sovereign  legislature 
whose  statutes  formed  the  highest  expression  of  popular 
will.  It  might  retain  the  separation  from  the  legislature 
of  the  executive  governors  elected  by  the  people,  and  ex- 
ercising his  veto  on  their  behalf,  and  yet  dispense  alto- 
gether with  a  rigid  fundamental  constitution.  This,  how- 
ever, no  American  state  does  or  has  ever  done,  or  is 
likely  to  do." 

Xo  matter  how  vital  any  proposed  change  might  be 
the  people  themselves  should  have  the  power  to  make 
it  when  they  thought  it  advisable. 

It  will  be  said  that  the  amendment  provision  under 
consideration  above  does  not  purport  to  limit  the  power 
of  the  people  to  make  any  change  whatsoever,  but  only 
provides  a  method  therefor. 

As  a  method  pure  and  simple  there  is  no  objection  to 
it.  lUit  when  there  is,  as  here,  a  limitation  upon  the 
actual  use  of  the  method,  this  may  amount  to  a  limita- 
tion of  the  power  itself,  which  possibly  could  not  be  tol- 
erated under  come  circumstances  without  danger  to  the 
state. 

The  requirement  that  amendments  shall  be  proposed  by 
the  Legislature  and  voted  upon  by  the  people  suggests 
a  natural  and  proper  method. 

Anticii)ating  that  it  might  never  be  necessary  to  call  a 
convention  (and  wisely  as  we  think)  a  method  was  pro- 
vided for  amendment. 

This  was  proper,  not  as  necessarily  depriving  the  peo- 
ple in  their  sovereign  capacity  of  the  right  to  adopt  con- 


38 

stitutional  provisions  in  any  other  manner  in  any  case  or 
in  any  exigency^  bui:  as  directing  and  furnishing  a 
method  which  could  be  pursued  without  affecting  or  en- 
dangering the  peace  and  tranquillity  of  the  state  while 
the  vital  subject  w^as  under  treatment  or  until  the  people 
had  formally  expressed  themselves  upon  it,  and  which 
method  should  be  pursued  where  it  was  practicable. 

Some  will  say  that  the  constitution  framers  might  nat- 
urally have  seen  that  by  their  limitation  upon  amend- 
ments such  progress  of  making  changes  thereto  would  be 
very  slow,  but  that  they  deliberately  intended  it  that  way, 
and  that  if  the  way  were  not  fast  enough  to  suit  the 
changing  conditions  of  the  people  then  it  was  intended 
to  drive  them  to  resort  to  a  ''convention. '^ 

But  conceding  the  power  of  one  convention  to  bind 
the  people  to  such  methods  or  to  drive  them  to  another 
convention  this  suggestion  does  not  look  tenable. 

For  it  is  hardly  to  be  presumed  that  these  men  in- 
tended that  periodically  all  the  organic  and  fundamental 
law  of  the  state  should  be  wiped  out  or  dumped  into  the 
hotchpotch  of  debate  to  be  again  agreed  upon,  voted  upon 
and  re-declared. 

We  cannot  construe  the  said  provision  without  recog- 
nizing the  nature  of  the  instrument  or  subject-matter  to 
which  it  relates. 

If  the  proposed  construction  of  an  amendatory  pro- 
vision such  as  the  one  we  have  above  treated  would  lead 
or  might  lead  in  and  of  itself  to  harmful  results  and  state- 
wide disaster,  or  the  uprooting  of  the  vital  principles  of 
government  and  its  organic  law,  either  one  or  the  other 
is  a  conclusive  argument  against  it — especially  where 
every  word  can  be  given  effect  and  such  a  result  avoided 
by  another  construction. 


39 

1  he  suggestion  that  "one  generation  should  not  be  al- 
lowed to  bind  another"  should,  however,  be  explained 
and  guarded  in  application.  Nothing  should  be  done  by 
one  generation  which  should  bind  a  succeeding  genera- 
tion against  its  protest.  The  succeeding  generation  is 
supposedly  as  fit  to  judge  all  vital  matters  which  affect 
it  as  the  preceding  one;  and  in  fact  if  mankind  is  really 
progressing  toward  the  better  it  should  be  more  fit.  His- 
tory has  its  value  and  in  considering  the  making  of  vital 
changes  it  should  be  paid  venerable  tribute  and  the  expe- 
rience of  prior  generations  should  be  given  great  weight. 
But  such  later  generations  have  no  inherent  right  or  con- 
trol over  succeeding  generations  or  any  one  of  them. 

But  it  does  not  follow  that  because  this  is  so  (that  be- 
cause each  generation  of  a  state  should  have  control  over 
its  constitution)  that  the  way  is  open  at  any  time  for  a 
change  therein  in  any  manner  whatsoever. 

It  can  well  be  said  that  it  is  not  to  the  interest 
of  one  generation  to  be  born  into  a  state  of  technical 
or  actual  anarchy  in  regard  to  its  constitution  or  laws. 
The  duty  and  the  privilege  of  the  prior  generation 
to  transmit  to  the  succeeding  one  a  stable  and  peaceful 
state  under  which  the  latter  may  come  upon  the  scene  of 
life  is  clear.  And  this  l>eing  so,  reasonable  metluxls. 
forms  and  limitations  which  are  prescri!)ed  by  one  genera- 
tion of  citizens  of  a  state  within  and  according  to  which 
the  fundamental  regulations  or  laws  shall  be  changed  arc 
proper  and  necessary  safeguards  of  **p<^*'^<^c  ^"'^  tranquil- 
lity." The  constituted  k)dies  in  authority  shoultl  there- 
fore observe  them. 

If.  therefore,  a  constitution  of  a  state  dcli!>cratcly 
planned  and  regularly  accepted  provides  that  there  .«ihall 
be  no  amendment  thereto,  or  change  therein,  except  in  a 


40 

certain  method  and  within  reasonable  limitations,  such 
forms  and  methods  should  be  observed,  and  that  depart- 
ment of  state  whose  constituted  function  is  tO'  see  that 
laws  are  followed  should  have  the  right  to  enforce 
obedience  tO'  such  methods,  or  to  declare  departures  there- 
from null  and  void. 

But  it  must  not  be  forgotten  that  such  limitations 
should  be  strictly  construed.  And  where  they  apparently 
conflict  with  the  orderly  development  of  the  state,  and  bear 
heavily  on  the  public  welfare,  and  prevent  progress,  and 
invite  anarchy  or  chaos,  then  they  should  be  construed 
either  as  being  null  and  void  as  applied  to  the  issue  then 
presented,  or  the  latter  should  be  treated  as  a  police 
measure,  a  measure  of  necessity,  and  outside  and  beyond 
the  scope  of  such  provisions.  In  this  way  peace  and  the 
stability  of  public  affairs  may  be  preserved.  The  very 
object  of  such  provisions  would  be  thwarted  in  pursuing 
another  course. 

The  necessity  of  an  elastic  construction  of  constitu- 
tional provisions  is  thus  apparent.  The  professed  object 
underlying  such  regulations,  and  which  call  them  into 
existence,  might  be  furthered  in  one  case  and  with  one 
construction  or  application,  while  by  the  same  in  another 
it  would  be  thwarted  and  rendered  null. 

It  may  be  said,  however,  that  it  does  not  follow  that 
the  strictest  adherence  to  amendatory  provisions,  even  if 
these  were  slow  and  burdensome  methods,  would  drive 
the  public  to  such  state  of  chaos  or  anarchy,  technical  or 
real,  but  that  it  would  only  force  us  to  have  a  constitu- 
tional convention. 

Is  the  constitutional  convention  the  preordained  style 
of  body  or  form  of  expression  through  which  any  eenera- 
tion  of  people  are  bound  to  express  assent  to  or  dissent 


41 

from  clianges  in  their  organic  law  or  frame  of  govern- 
ment? If  one  generation  cannot  tie  the  hands  of  a  suc- 
ceeding one  or  put  limitations  uix>n  their  power  to  change 
their  fundamental  law,  has  it  the  power  to  decree  once 
and  forever  that  a  certain  method  through  which  this  can 
be  done  shall  be  the  only  one?  Has  it  the  power  to  say 
that  assent  by  the  electors  of  a  commonwealth  to  a  pro- 
vision or  any  number  of  them  can  only  be  given  after  such 
provisions  shall  be  framed  and  submitted  to  them  by  a 
certain  body  of  men  or  by  a  body  constituted  in  a  certain 
way  ? 

Had  there  been  no  conventions  of  the  American  states 
at  the  time  of  their  organization  or  their  coming  into  the 
Union,  it  is  quite  possible  that  constitutions  might  have 
been  adopted  by  them  through  some  election  proposed  by 
anybody,  or  any  set  of  officers  or  persons  in  actual  au- 
thority or  without  authority  in  the  territory  at  the  time. 
But  if  the  election  was  actually  open  to  all  the  electors  of 
the  state  and  a  majority  favored  the  adoption  of  the  con- 
stitution, and  all  of  the  departments  of  government  pro- 
vided for  therein  had  been  put  in  actual  operation,  would 
the  courts  declare  it  null?  Would  they  commit  suicide, 
or  as  a  member  of  the  tripartite  state  government  in- 
vite it? 

History  furnishes  many  examples  of  a  state  of  peace 
occurring  to  an  unorganized  society,  and  of  laws  and 
regulations  being  imposed  thereon  and  accepted  thereby. 
A  convention  is  only  one  of  them.  It  is,  however,  well 
and  naturally  adapted  to  the  construction  or  creation 
of  a  state;  and  in  fact  until  the  state  shall  have  become 
so  diseased  as  to  need  practical  re-creation,  we  can  sec 
no  other  use  for  it. 

Supposing  measures  amending  the  constitution  were 
presented  by  the  General  Assembly  and  voted  on  and 


42 

adopted  by  a  majority  vote  of  the  people  cast  at  an  elec- 
tion regularly  held  by  the  election  officers  of  the  state  and 
under  the  forms  in  vogue,  would  the  judicial  department 
of  the  government  be  authorized  or  empowered  to  declare 
it  null  ?  Such  a  measure  might  involve  the  peace  and 
stability  of  the  state.  There  might  have  been  no  time  for 
the  slow  process  of  a  constitutional  convention,  and  a 
submission  of  its  work  to  the  people  for  a  vote.  There 
might  be  ultra-stringent  methods  required  by  a  constitu- 
tion and  it  might  take  six  or  a  dozen  years  to  obtain  an 
expression  of  the  people  upon  a  submitted  draft  of  a  new 
constitution;  and  it  in  any  event  would  require  the 
throwing  the  whole  body  of  organic  law  into  technical 
chaos  and  confusion. 

The  state  should  not  invite  self  destruction,  nor  should 
any  of  its  governmental  departments  do  what  would  in- 
vite or  threaten  it.  If  the  legislature  were  pro- 
ceeding to  submit  an  amendment  to  a  constitution 
in  a  way  different  from  a  form  prescribed  by  that  instru- 
ment, and  the  administration  officers  of  the  state  were 
proceeding  to  hold  an  election  in  consequence  thereof,  the 
court  might  enjoin  the  holding  of  such  election.  But  the 
courts  woiuld  act  in  such  case,  not  by  virtue  of  any  in- 
hibition in  the  constitution  that  no-  otJwr  method  could 
be  pursued  in  any  case,  but  that  the  directory  require- 
ments in  said  instrument  should  be  followed,  where  not 
impracticable,  or  not  gravely  menacing  to  the  state's  wel- 
fare, and  that  in  the  specific  instance  then  being  con- 
sidered it  was  practicable  to  follow  them. 

But  all  this  would  simply  seem  to  show  that  of  neces- 
sity the  invitation  for  the  courts  to  interfere  must  be  a 
matter  of  discretion  or"  must  be  limited  to  cases  where 
full  relief  could  be  given  the  public  by  pursuing  the  slow 
and  technical  methods  pointed  out  in  the  constitution. 


43 

We  learn  from  Jamcsi.n  that  the  legislative  mode  of 
changiiiii  the  constitution  is  about  as  common  in  America 
as  the  convention  mode,  that  ''they  are  of  about  equal 
antiquity  and  about  equal  authority."  (p.  551.)  We 
think  the  former  by  far  the  "most  natural"  and  orderly 
method  which  Jameson  concedes  it  to  l>e;  and  we  can  not 
see  why  limitations  upon  the  use  of  such  a  method  are  not 
as  illogical  as  similar  limitations  upon  a  convention 
would  be.     We  will  refer  later  to  this  subject. 


IVhai  is  the  proper  futietion  of  a  constituiionf 

The  Bill  of  Rights  sets  out  certain  individual  rights 
which  it  declares  shall  never  be  infringed,  and  which 
by  common  acceptance  are  the  heritage  of  the  people  and 
proved  by  the  sacrifices  and  contests  and  mutations  of  his- 
tory to  be  necessar  •  for  human  progress.  The  Frame  of 
Government  provides  for  the  organization  of  the  statsi 
and  its  chief  departments,  etc.  These  about  mark  the 
limits  of  the  prui:;er  scope  of  such  an  instrument. 

If  the  frame  of  government  had  been  long  established 
and  by  common  consent  recognized  as  permanent,  the  bill 
of  rights  would  seem  to  be  sufficient. 

If  rights  preserved  by  the  latter  article  had  like- 
wise by  common  consent  l)een  accepted  and  established 
through  long  usage,  it  would  seem  that  such  article  also 
would  be  superfiuous. 

Tt  is  barely  possible,  therefore,  that  a  day  will  come 
when  carrying  along  provisions  of  such  fundamental 
character  upon  the  statute  lxx)ks  and  other  public  records, 
will  be  deemed  a  useless  burden  and  such  documents  !)C 
treated  as  so  much  "dead  timber,"  possessing  little  more 
than  historical  interest.  This  bv  icason  of  their  essential 
and  conceded  perninnrnrv 


44 

We  do'  not  mean  by  this  that  the  provisions  will  be  less 
vital  or  come  to  be  thought  of  as  not  important;  but  that 
through  long  continue'd  usage  in  protecting  such  rights, 
and  by  a  public  habit  of  recognizing  them  as  vital,  they 
will  become  such  an  essential  part  of  our  public  life  that 
the  probability  of  their  infringement  by  the  legislature  or 
other  public  agencies  will  be  ultra-remote  and  scarcely 
thought  of. 

When  one  looks,  therefore,  at  the  modern  constitution 
of  an  American  state  and  witnesses  that  nine-tenths  of  it 
is  mere  legislation  or  "mechanics"  or  method,  and  but 
one-tenth  of  it  fundamentally  vital  in  principle,  it  does  not 
look  at  all  like  a  very  benign  or  logically  fit  document. 
Considered  apart  from  the  actual  experiences  of  such 
states  with  these  many  featured  limitations  (many  of  the 
latter  of  which  have  become  like  fangs  in  the  body  of  the 
corporate  Dublic),  the  instrument  itself  looks  cumber- 
some and  grotesque. 

It  is  therefore  a  relief  to  find  that  in  one  American 
state — Virginia — the  first  constitution  was  simply  a  dec- 
laration of  the  bill  of  rights ;  and  that  the  broad  and  sim- 
ple Massachusetts  constitution  of  1789  is,  with  however 
many  and  various  amendments,  in  force  to-day. 

We  do  not  here,  of  course,  advocate  the  immediate  do- 
ing away  with  all  things  in  our  constitution,  except  the 
bill  of  rights  and  the  frame  of  government.  A 
tendency  exists  on  the  part  of  the  very  best  of 
legislators  to  frequently  disturb  things  without  a 
sufficient  warrant  therefor.  While  the  English  parlia- 
ment (whose  power  of  legislation  is  practically  unlim- 
ited), has  eventually  been  brought  up  to  a  condition  where 
there  is  little  danger  of  disturbing  matters  of  vital  and 


45 

permanent  interest,  our  legislatures  in  America  are  prone 
to  do  so  with  very  slight  demand  or  urgency  therefor. 
It  takes  considerahlc  brains,  much  experience  and 
some  moral  courage  to  escape  an  occasional  "tinkering" 
with  vital  things. 

Some  "mechanics"  might  he  safely  lodged  in  the  con- 
stitution if  they  were  such  as  it  were  clear  would  not  have 
to  be  frequently  changed. 

But  the  power  of  amendment,  or  change  of  such  pro- 
visions should  indeed  be  broad,  and  the  people  should  be 
untrameled  in  respect  thereto,  except  that  reasonable  pro- 
visions to  restrain  their  being  submitted  at  every  pretext 
should  be  appreciated  and  upheld. 

The  requirement  that  two-thirds  of  each  house  of  the 
assembly  must  assent  to  a  proposal,  and  that  the  majority 
of  the  electors  voting  thereon  shall  favor  such  proi^sal. 
is  limitation  enough  upon  methods  of  procedure. 

Our  present  constitution  consists  of  about  200  sections, 
some  of  these  many  featured  and  complex.  The  points 
in  which  its  limitations  bear  upon  public  progress,  need 
not  be  scheduled  here.  But  the  safer  practice  will 
be  to  remove  those  which  are  superfluous  only  as  they  arc 
found  to  block  the  path  of  progress;  and  it  will  probably 
be  a  long  time  before  Illinois,  as  well  as  the  other  states, 
get  back  to  a  real  constitution. 

There  have  been  so  many  state  conventions  in  America 
that  we  have  acquired  a  sort  of  "convention  habit,"  as  it 
were,  and  we  have  partly  lost  sight  of  the  radically  dis- 
turbing nature  of  such  a  \x)(\y. 

Its  proper  function  is  constructive.  It  is  properly  oc- 
casioned only  to  a  state  of  unfoimded  or  unformed  so- 
ciety or  actual  or  technical  anarchy. 


46 


This  "habit"  has  even  dulled  the  eyes  of  American 
writers  upon  constitutional  law,  and  they  fail  to  note  the 
essential  gravity  of  such  a  thing. 

Judge  Jameson,  writing  thirty  years  agO'  at  Chicago, 
speaks  oi  the  convention  as  now  "a.  part  of  our  common 
law  in  America."  In  treating  of  the  validity  or  in- 
validity of  conventions,  he  is  quite  firm  in  advocating  that 
the  methods  in  the  original  constitution  for  amendment 
or  for  calling  a  convention  should  be  firmly  adhered  to. 

In  this  latter  he  is  correct.  But  it  is  thought  that  the 
process  of  amendment  of  a  constitution  proposed  by  the 
legislature  and  voted  on  by  the  people  at  large,  which  he 
in  another  place  says  is  the  "natural  one,"  is  as  much  a 
part  of  the  common  law  as  conventions. 

The  exigency  where  forms  prescribed  by  the  constitu- 
tion for  making  changes  therein  either  through  amend- 
ment or  convention  are  found  to  be  onerous  and  threaten 
the  welfare  of  the  state  and  its  continued  existence  is  not, 
as  we  think,  treated  accurately.  Any  departure  from 
these  forms,  no  matter  whether  or  not  the  method  pur- 
sued is  provided  by  the  legisalture  and  decreed  by  a  vote 
of  the  people  themselves,  is  treated  by  Judge  Jameson  as 
"illegal"  and  "revolutionary." 

In  referring  to  acts  which  are  done  without  law  or 
against  law,  to  save  the  existence  of  the  state,  "to  save 
that  for  which  all  laws  are  made/'  he  says.  p.  102 :  "Such 
acts  are  nevertheless  to  be  classed  as  revolutionary. 
The  moral  character  to  be  affixed  to  them,  however,  is  to 
be  determined  by  the  degree  of  their  necessity.  *  *  * 
Such  acts  may,  under  some  circumstances,  be  necessary 
or  justifiable  to  preserve  life." 


47 

These  observations,  however,  do  not  touch  the  case 
mentioned  above.  For  acts  such  as  he  mentions  there  is 
no  legal  warrant  whatever. 

I  But  from  the  "necessity  to  preserve  life"  the  courts 

mav  conceive  and  declare  as  matter  of  lazv,  that  it  could 
not  have  been  intended  to  take  life,  or  that  if  it  was  so 
intended  there  was  no  legal  warrant  therefor. 

How  deep  down  into  the  vitals  of  state  life  reach  the 
provisions  for  revision  or  amendment  of  their  consti- 
tutions is  shown  by  the  history  of  the  American  states. 

The  Deleware  constitution  provided  that  there  should 
be  no  change  in  certain  vital  provisions  therein  whether 
by  amendment  or  convention  revision,  without  a  vote  of 
at  least  five-sevenths  of  the  "assembly,"  and  seven-ninths 
of  the  "council,"  which  two  houses  constituted  its  legis- 
lature. 

The  state  needed  a  change,  and  needed  it  badly,  and  it 
was  impossible  to  get  the  requisite  unanimity  of  opinion 
thereon  or  the  requisite  number  of  votes  therefor  in  the 
legislature. 

Thereupon  said  body,  reciting  the  said  impossibility 
and  the  necessity  for  the  change,  etc..  etc.,  by  a  majority 
vote  of  its  members,  provided  for  an  election  of  delegates 
to  a  state  convention  to  be  held  for  the  purfxise  of  revis- 
ing the  constitution.  Such  delegates  were  elected,  and 
the  convention  was  called  and  revi.sed  said  instrument, 
changing  said  vital  provisions  above  referred  to,  and  the 
new  instrument  went  into  effect.  It  was  not  even  ques- 
tioned that  it  was  valid,  and  the  people  acted  under  it 
from  the  start. 

A  similar  action  was  taken  in  1850  in  the  State  of 
Maryland.  The  constitution  of  1776.  then  in  force.  Sec. 
59,  provided  that  neither  the  Form  of  Government  nor 


48 

the  Bill  of  Rights,  nor  any  part  thereof,  should  be 
altered,  changed  or  abolished  "unless  a  bill  so  to  alter, 
change  or  abolish  the  same  should  pass  the  General  As- 
sembly, and  be  published  at  least  three  months  before  a 
new  election,"  etc. 

After  violent  contests  between  the  friends  and  enemies 
of  a  reform  of  the  State  Constitution,  an  act  was  finally 
passed  in  1850,  in  direct  vioaltion  of  this  provision  of 
that  instrument,  to  call  a  convention,  the  result  of  which 
was  the  election  of  such  a  body,  and  the  adoption  by  it 
of  the  Constitution  of  1851. 

Evidently  the  people  of  the  state  in  each  of 
these  instances  never  thought  that  they  were  un- 
dergoing a  silent  ''revolution,"  which  Jameson  is  pleased 
to  term  this  episode.  Common  sense  apparently  prompted 
them  to  assume  that  if  there  were  such  inhibitions  in  the 
letter  of  their  constitution,  as  in  a  given  case  would  abso- 
lutely prevent  their  progress  or  relief  from  intense  inter- 
nal evil,  and  throw  them  into  anarchy  and  chaos,  it  was 
but  reasonable  to  believe  and  act  upon  the  belief  that  such 
prohibitions  were  never  meant  to  apply  to  such  an  extra- 
ordinary case;  that  they  must  be  read  with  the  implied 
modification  that  they  were  to  apply  in  all  cases  when  not 
impracticable  for  the  welfare  of  the  state,  or  when  fol- 
lowing them  would  not  imperil  the  existence  of  the  state. 

Between  such  a  construction  (not  uncommon,  by  the 
way,  in  construing  statute  law  in  ''police  power"  cases), 
and  the  technical  rule  of  following  the  letter  in  all  cases, 
lies  all  that  lies  between  order  and  chaos,  sanity  and  in- 
sanity, existence  and  death. 

Is  it,  then,  hard  to  choose  between  them  ? 

There  is  also  an  instance  where  the  amendment  plan 
was  adopted  in  a  manner  without  affirmative  constitu- 
tional warrant  therefor. 


49 

In  Kentucky  (in  1891),  after  the  draft  of  constitution 
which  a  convention  had  prepared  had  been  submitted 
to  and  accepted  by  a  p(jpular  vote  (as  provided  by  the 
statute  wliich  summoned  the  convention),  the  convention 
met  again  and  made  s'»me  alterations  on  whirl,  the  people 
have  never  been  asked  to  vote. 

Prucecdings  were  taken  before  the  Court  of  Appeals  of 
Kentucky  to  determine  the  vaHchty  of  these  aherations, 
and  the  court  by  a  majorilv  upheld  them,  on  the  ground 
that  the  legislature  and  executive  had  treated  them  as 
operative.  The  matter  is  further  complicateil  by  the 
fact  that  something  similar  had  happened  in  1850, 
when  the  last  previous  constitution  was  ».dopted,  and  that 
that  constitution  did  not,  like  the  statute  which  created 
the  convention  of  1890,  prescribe  a  popular  vote. 

The  doctrine  of  the  Kentucky  case  was  the  same  as 
that  on  which  courts  uphold  the  organization  of  munici- 
pal and  other  public  bodies,  which,  though  without  tech- 
nical legal  warrant,  have  been  recognized  by  the  legisla- 
ture or  the  public  at  large,  and  been  widely  acted  upon, 
and  to  upset  or  destroy  which  would  o|)erate  to  the  loss 
and  confusion  of  the  public  at  large,  or  any  considerable 
portion  of  it. 

These  three  instances  are  quite  distinct  in  character 
from  another  which  happened  in  Rhode  Island  in  1 841. 
Vital  constitutional  changes,  as  in  the  other  two  in- 
stances were  badly  needed. 

Upon  repeated  failures  and  refusals  of  the  .i^^ciubly  to 
act,  a  "spontaneous"  convention  was  called  by  a  number 
of  citizens,  which  convention  called  ui)on  the  people  of 
the  state  to  elect  delegates  to  a  further  convention  to  be 
called  to  frame  and  adopt  a  new  constitution  for  the  state. 
An   election   was  held,  the  delegates  elected  as^^etnhlcd. 


5^ 

prepared  a  new  constitution  and  adopted  it,  prepared  for 
holding  elections  under  it  for  a  governor  and  members 
of  assembly,  etc.,  etc.  The  so-called  assembly  was 
elected,  met,  passed  some  laws,  and  the  '^governor,"  one 
Dorr,  attempted  to  act  as  chief  executive  officer  of  the 
state. 

Upon  a  test  the  state  Supreme  Court  held  the  so-called 
constitution  void,  as  well  as  all  acts  done  under  it,  and 
the  Supreme  Court  of  the  United  States  affirmed  the 
judgment.     Luther  v.  Borden^  7  How.   (U.  S.),  19-27. 

In  this  case,  however,  in  calling  upon  the  people  to  act 
in  the  matter  of  electing  deleo^ates  and  adopting  the  so- 
called  constitution,  etc.,  the  state  was  not  speaking 
through  its  appropriate  and  authorized  speaking  organ, 
the  legislature.  The  new  legislative  body,  governor, 
etc.,  had  been  created  and  were  acting  in  opposition  to 
and  at  war  with  the  state's  lawful  and  existing  organ- 
isms. 

It  was  clearly  an  act  of  revolution,  and  held  to  be  so. 

Judge  Jameson  safely  classes  it  as  such.  But  to  the 
Delaware  and  Maryland  cases  he  also'  applies  the  same 
character,  and  in  this  we  think  he  errs. 

For,  there  the  state  was  acting  through  its  lawfully 
constituted  organisms  to  change  limitations  upon  its 
progress,  to  save  itself  from  chaos  and  anarchy. 

The  *'prior  generation"  in  bringing  into  life  the  child 
of  the  state  had  made  a  decree  which  meant  or  threatened 
it  with  death,  if  construed  literally,  and  if  no  exceptions 
zvhatever  were  made  in  its  application. 

The  change  in  each  instance  was  accepted  by  the  whole 
public  without  question — itself  strong  evidence  that  such 
a  proceeding  was  legal. 


51 

But  the  logic  to  support  it  was  twofold,  viz. : 

First,  it  could  not  have  been  intended  by  the  state  or- 
ganizers that  it  should  be  disrupted  and  broken  up;  and 
hence  any  provision  framed  by  them  would  be  so  con- 
strued as  to  except  a  case  which  threatened  such  a  crisis 

or  result. 

Secondly,  in  bringing  the  child  of  state  into  life  such 
parental  generation,  while  having  power  to  environ  or 
control  it,  had  no  power  to  decree  its  death;  and  to  such 
extent  such  provisions  were  inconsistent  with  the  very  act 
of  state  formation,  and  void. 

Says  Judge  Jameson,  p.  597  : 

"Attempts,  as  I  have  said,  have  been  made  to  de- 
fend this  action  of  the  States  of  Delaware  and 
Maryland  on  legal  grounds.  In  the  case  of  Dela- 
ware the  legality  of  the  course  was  distinctly  as- 
serted by  Mr.  Bayard,  the  senator  from  that  state, 
in  a  speech  delivered  in  the  senate  of  the  United 
States  in  1858.  upon  the  Lecompton  Constitution, 
*  *  *  the  broad  principle  being  asserted  by 
him  that  a  majority  of  a  people  could  not  be  re- 
strained by  constitutional  inhibitions  from  chang- 
ing the  fundamental  law  when  and  as  they  plea-ed. 
The  reasoning,  in  brief,  by  which  this  remarkable 
proposition  was  sustained,  was  comprised  in  these 
political  axioms,  resulting,  as  he  claimed,  'from  the 
nature  of  man';  first,  that  all  ptnvers  of  g»n-ernment 
rest  ultimately  in  the  people  at  large;  secondly,  that 
a  majority  of  those  who  choose  to  act  may  organize 
a  government;  and.  thirdly,  that  the  right  to 
change  is  included  in  the  right  to  organize,  and 
may  in  like  manner  be  exercised  at  any  time  by  a 
majority.     *     *     * 

"So.  in  reference  to  the  Maryland  case,  the  Hon. 
Reverdy  Johnson,  United  States  senator  from  that 
state,  is  a  late  letter  respecting  certain  proceedings 
of  the  Maryland  convention  of  18^)4.  said:  'N'o 
man  denies  that  the  American  principle  is  well  set- 
tled that  all  governments  originate  with  the  people 


52 

and  may  by  like  authority  be  abolished  or  modified; 
and  that  it  is  not  within  the  power  of  the  people, 
even  for  themselves,  to  surrender  this  right,  much 
less  to  surrender  it  for  those  who  are  to  succeed 
them.  A  provision^  therefore,  in  the  Constitution 
of  any  one  of  the  United  States,  limiting  the  right 
of  the  people  to  abolish  or  modify  it,  would  he  sim- 
ply void.  And  it  was  upon  this  ground  alone  that 
our  Constitution  of  '76  was  superseded  by  that  of 
'51.  The  Constitution  of  1851,  therefore,  rests  up- 
on the  inherent  and  inalienable  American  principle 
that  every  people  have  a  right  to  change  their  gov- 
ernment.' Subsequently,  referring  to  this  princi- 
ple, he  says :  'In  its  nature  it  is  revolutionary,  but, 
notwithstanding  that,  it  is  a  legal  principle.' 

"Two  points  involved  in  these  extracts  deserve 
consideration : 

''i.  The  right  is  claimed  for  the  people  to  estab- 
lish and  to  change  their  governments  at  pleasure — 
a  right  which  cannot  in  general  be  denied.  But 
who  are  the  people?  In  the  true  sense  of  the  term 
it  means  the  political  society  considered  as  a  unit, 
comprising  in  one  organization  the  entire  popula- 
tion of  the  state,  of  all  ages,  sexes  and  conditions. 
Unquestionably  it  is  the  right  of  the  people  in  this 
sense  to  found  its  institutions  and  to  determine  how 
they  shall  and  how  they  shall  not  be  abolished  or 
amended.  Having  ordained  the  mode,  however, 
in  which  changes  therein  may,  and  in  which  they 
shall  not  be  made,  clearly  no  mode  can  be  legal 
which  contravenes  the  express  letter  of  that  funda- 
mental provision.  The  society  has,  it  is  true,  the 
physical  power  to  override  its  own  restrictions. 
But  such  an  act  would  most  certainly  be  illegal, 
because  in  violation  of  the  letter  of  the  law.  Even 
were  the  whole  people,  by  unanimous  action,  to 
effect  organic  changes  in  modes  forbidden  by  the 
existing  organic  law,  it  would  be  an  act  of  revolu- 
tion. 

''2.  That  whatever  the  people  are  authorized  to 
do,  a  majority  of  them  may  do,  is  generally  true — 
by  the  term  majority  meaning  the  greater  number. 
But  it  is  important  to  determine  the  stage  at  which 


k 


53 

the  proposition  holds  g(jocl.  Nature  knows  noth- 
\u^  of  any  majority  but  that  of  force.  Anterior, 
then,  to  any  positive  institutions,  and  this  side  an 
appeal  to  force,  nothing  less  than  the  whole  can 
rii^htfully  bind  the  whole.  It  is  only  when  a  polit- 
ical society,  with  positive  laws  and  conii)acts,  has 
been  established,  that  the  whole  can  be  lK)und  by 
the  action  of  a  number  less  than  the  whole;  and  the 
number  to  which  shall  be  accorded  the  power  to  act 
for  the  whole,  and  the  conditions  under  which  it 
may  so  act,  are  matters  of  positive  regulation  in 
f  which  alone  they  find  their  warrant.     From  this  it 

is  apparent  that  a  mere  majority  in  number  of  all 
the  citizens  of  a  state  or  of  the  electors  of  a  state 
have  no  right  whatever  to  act  for  the  whole  state 
unless  they  can  point  to  authority  to  that  effect,  ex- 
press or  implied,  in  the  Constitution  of  the  state; 
and  that  if  the  action  taken  or  proposed  by  such 
majority  is  palpably  in  the  teeth  of  a  constitutional 
provision,  it  is  usurping  and  revolutionary.  This. 
it  will  have  been  observed,  was  admitted  by  Senator 
Johnson,  in  the  extract  given  above,  although,  it  is 
true,  that  eminent  lawyer  gave  utterance  t«^  the 
astounding  paradox,  that  the  action  of  the  Mary- 
land convention  was  at  once  rci'olutionary  and 
legal — a  contradiction  which  we  have  a  right  not 
to  expect  from  a  man  occupying  the  li'gh  j)Osition 
of  a  senator  of  the  United  States,  not  to  sav,  of  the 
foremost  lawyer  in  the  Union." 

But  between  these  two  views  there  lies  a  middle 
ground,  viz. : 

It  is  not  a  right  of  the  people  at  all  times  to  change 
their  fundamental  organization  upon  the  expressed  will 
of  a  majority  acting  for  the  whole.  The  regulations  for 
changing  the  organization  are  valid. 

Rut  if  they  amount  to  destroying  it,  or  if  necessary  to 
presence  it,  resort  can  be  had  to  the  common  law  rule — 
the  rule  of  necessity — that  the  majority  of  the  people 
should  have  the  right  to  alter  or  change  it. 


54 

Many  state  constitutions  contain  this  latter  as  a  funda- 
mental principle  of  American  law.  This,  of  course, 
means  as  a  legal  principle. 

Thus  modified,  and  as  applied  to  the  action  of  Dela- 
ware and  Maryland,  Mr.  Reverdy  Johnson's  declaration 
that  such  right  (to  be  exercised  in  such  am  exigency)  is 
a  legal  right,  is  understandable;  and  we  think  that 
the  great  lawyer's  conclusions  were  sound,  and  the 
learned  author's  erroneous.  Mr.  Johnson  meant  only 
by  his  quoted  expression  that  such  acts  were  radical^  or 
convulsive  or  strenuously  exertive,  in  such  sense  'Revo- 
lutionary in  character."  He  may  have  been  technically 
inaccurate  in  referring  to  a  legal  act  as  practically  "revo- 
lutionary." But  we  are  more  concerned  with  his  con- 
clusions than  the  phrasing  of  his  argument,  and  these 
we  think  are  sound. 

Judge  Jameson,  in  discussing  the  character  of  resolu- 
tions proposing  amendments  and  requiring  a  state  vote 
thereon,  such  as  we  have  in  this  tate,  concludes  that  they 
are  "legislative"  and  not  merely  "ministerial." 

As  to  "ministerial"  resolutions  for  amendment,  viz. : 
such  as  merely  recommend  amendments  without  requir- 
ing a  vote  thereon,  or  require  a  vote  simply  to  take  the 
sense  of  the  people  thereupon,  etc.,  he  gives  as  an  in- 
stance a  clause  in  the  Massachusetts  constitution,  in- 
serted by  the  convention  of  1820. 

The  question  was  up  whether  it  was  proper  to  require 
more  than  a  majority  of  each  house  to  thus  recommend 
amendments  to  the  people.  Mr.  Webster  gave  as  a  rea- 
son in  favor  thereof  that  "This  was  not  an  exercise  of 
legislative  power." 

And  Judge  Jameson,  after  quoting  Mr.  Lincoln  in  the 
same  debate  concludes  by  saying:     "The  aim  of  these 


55 

gentlemen  was  to  show  that  in  requiring  more  than  a  ma- 
jority of  the  legislature  or  of  some  branch  of  it,  to  pro- 
pose amendments  to  the  constitution,  uo  principle  was 
violated,  as  zi'oithl  have  been  the  case  had  it  been  an  act 
of  ordinary  legislation  for  which,  by  the  common  prac- 
tice of  all  free  governments,  a  majority  is  sufficient.  Be- 
ing not  an  exercise  of  legislation  at  all,  there  was  no  im- 
propriety in  requiring  a  vote  of  two-thirds  or  of  any 
other  majority." 

Judge  Jameson  thus  reveals  the  vitaJ  nature  of  the  prin- 
ciple of  a  majority  rule,  as  applied  to  all  free  govern- 
ments. 

And  the  great  ''leak"  in  his  argument  is  at  the  point 
where  he  says  the  action  of  a  majority  will  Ixi  illegal  un- 
less "they  can  point  to  some  authority,  express  or  im- 
plied.'" 

We  claim  for  the  majority  an  implied  authority  in  the 
exigency  mentioned.  An  authority  lying  at  the  base  of 
the  existence  of  the  state — deeper  than  its  constitution — 
as  implied  from  the  fact  or  the  making  of  a  constitption. 

In  the  Delaware  and  Maryland  cases  the  people,  the 
sovereign,  spoke  to  themselves  through  the  election.  Any 
election  at  which  the  jKople  actually  voted  would  not 
necessarily  be  a  legal  one.  But  one  held  at  the  instance 
of  the  legislature,  the  authorized  Ixxly  for  all  such  politi- 
cal and  legislative  acts,  would  be  a  different  matter. 

In  classifying  the  five  systems  according  to  their 
relative  rank  in  representing  sovereign  powers,  Jameson 
(p.  24)  gives  this  order: 

1.  The  electors. 

2.  The  legislature. 

3.  The  convention. 

4.  The  executive. 

5.  The  judiciary. 


56 

In  according  this  high  place  to  the  legislature  he  in 
fact  tends  tO'  support  the  view  that  in  the  exigency  of  the 
state's  existence  being  threatened  the  third,  the  conven- 
tion, having  no  pov^er  to  decree  what  may  amount  to  dis- 
solution, the  sovereign,  through  its  electors  called  to  act 
by  its  legislature,  both  of  them  higher  in  grade  than  the 
convention,  can  orderly  and  legally  decree  otherwise. 

The  legal  power  to  preserve  itself  is  implicit  in  the 
state  as  a  state;  and  its  three  organic  departments  must 
support  each  other  in  acts  to  that  end  appropriate  to  their 
respective  functions. 

What  is  implied  from  legal  existence  is  not  illegal. 

In  exercising  this  power  the  state,  and  in  upholding  it 
the  courts,  had  the  right  to  seize  upon  the  common  law 
rule  of  a  majority  being  equitably  and  of  right  the  voice 
of  the  whole  body. 

In  referring,  p.  241,  to  a  claim  in  the  Rhode  Island 
constitution  of  1842  to  the  effect  that  the  constitution 
''should  exist  and  be  sacredly  obligatory  upon  all  till 
changed  by  an  explicit  and  authentic  act  of  the  whole 
people,"  he  wisely  concludes  that  this  must  mean  the  ma- 
jority of  the  electors  of  the  people. 


It  is  thus  seen  how  close  to  the  heart  of  the  state  lie 
constitutions  and  the  power  to  change  them;  and  hence 
how  wide  a  field  courts  must  have  in  construing  them. 

In  grants  of  power  to  its  courts,  in  constructive  provi- 
sions, etc.,  extrinsic  aids  may  be  resorted  to  and  words 
supplied  to  give  effect  where  the  language  used  is  vague. 

In  limitations,  however,  a  strict  construction  will  be 
applied.  There  is  no  better  settled  rule.  There  is 
as  much  difference  between  the  two  as  there  is 
between      expansion      and      contraction      or      between 


57 

traveling  east  and  traveling  west.  And  when  gross  and 
widespread  evils  have  sprung  up  within  the  state,  and  an 
acute  disease  can  not  be  cured  by  applving  the  strict  letter 
of  such,  an  orderly  decree  of  the  state  itself  given  upon 
invitation  of  its  appropriate  organ,  should  be  sustained  by 
the  courts  as  a  police  measure  necessary  to  preserve  its 
very  life,  and  hence  not  contemplated  by  such  prohibi- 
tions, and  beyond  the  pozver  of  the  constitution  makers 
to  prohibit. 


From  some  study  of  the  question  we  conclude : 

1.  A  convention  is  the  method  by  which  American 
states  formed  their  government,  their  state  corpus,  as  it 
were. 

2.  Such  a  corpus,  upon  being  formed,  was  divided  into 
three  different  members — executive,  legislative  and  judi- 
cial. 

3.  The  legislative  is  the  natural  and  only  one 
through  which  the  people  speak  or  move  to  change  their 
organization. 

4.  Such  move  must  be  made  in  the  manner  provided 
for  by  the  constitution,  and  the  legislature  must  keep 
within  its  limitations,  excepting  when  it  is  impracticable  to 
do  so,  or  the  "peace  and  tranquility"  of  the  state  will  he 
endangered  by  delay,  or  by  attempts  to  follow  such 
methods. 

5.  In  sucli  latter  case  the  legislature  can  propose 
changes;  and  if  the  majority  of  voters  (representing  the 
sovereign  iK)wer — the  people  themselves)  vote  affirma- 
tively thereon,  it  will  be  in  fact  the  decree  of  sovereignty 
itself,  and  should  be  sustained  by  the  courts,  as  warranted 
under  the  circumstances, — as  a  measure  of  necessity 
adopted  according  to  common  law  or  universally  accepted 


58 

methods, — as  the  only  orderly  and  prompt  way  for  relief, 
— as  essentially  a  police  measure  occasioned  by  a  situation 
unprovided  for  by  the  constitution — as  a  natural  ''last 
gasp."  Such  is  not  an  act  of  ''silent  revolution,"  but 
rather  the  orderly  decree  of  a  sane  state  organism,  that 
it  will  not  throw  itself  into  chaos  and  be  "revolutionized." 

6.  For  the  assembly  to  refuse  to  speak  in  such  a  crisis, 
or  the  courts  to  sustain,  and  the  executive  to  execute, 
would  be  just  about  as  logical  and  natural  as  for  a  phys- 
ically sound  man  to  refuse  to  walk  from  the  verge  of  a 
precipice,  or  as  for  one  in  the  throes  of  death  to  refuse  to 
breathe  pure  air  about  him. 

8.  It  is  not  clear  that  the  "convention"  method  has 
any  better  title  than  the  "amendment"  plan  to  being  the 
"common  law"  manner  for  making  such  organic  changes. 

But,  rather,  it  is  clear  that  amendment  is  the  natural  or 
orderly  way  for  a  constitution  to  "develop"  or  "evolve;" 
and  that  in  construing  any  limitations  upon  the  methods 
or  power  of  amendment,  the  strictest  construction  should 
be  indulged,  rather  than  drive  the  state  to  a  "convention" 
remedy,  opening  up  its  whole  organism  to  change  or  at- 
tack— a  technical  confession  that  there  is  little  or  none  of 
such  organism  left  to  be  held  fast  to — that  democracy  it- 
self is  a  failure. 

9.  The  doctrine  of  police  power  has  been  long  estab- 
lished. In  many  instances  laws  in  apparent  conflict  with 
the  letter  of  constitutions  have  been  sustained  under  this 
doctrine,  viz. :  As  being  proper  police  or  defensive  meas- 
ures under  extraordinary  circumstances,  as  measures  of 
necessity  for  the  public  welfare. 

10.  The  extension  or  application  of  this  doctrine  to 
"constitutional"  decrees,  or  that  they  must  in  appropriate 
cases  yield  to  the  orderly  decrees  of  sovereignty  itself  is 
natural  and  legitimate.     True,  it  may  in  such  cases  be 


59 

more  far-reaching  in  effect  and  involve  more  responsi- 
bilitv  1)\  the  courts;  but,  on  the  other  hand,  the  parts  of 
the  organic  body  affected  He  nearer  the  heart,  and  the 
o-reater  risk  would  lie  in  their  refusing  relief  or  declining 
responsibility. 

We  do  not  feel  called  on  to  venture  an  opinion  as  to 
whether  or  not  conditions  in  Illinois  are  so  bad  and  the 
evils  needing  correction  by  changes  in  its  constitution  so 
many  as  to  justify  a  resort  to  the  method  used  in  the  in- 
stances of  Maryland  and  Delaware,  above  noted. 

For  we  believe  that  the  conclusions  announced  as  to 
the  (at  least  practically)  unrestrictive  nature  of  the 
amendatory  provision  of  the  Illinois  constitution  are  be- 
yond serious  question. 

If  one,  however,  were  able  to  see  accurately  the  many 
places    where    the    provisions    of    such    instrument  l)ear 
heavily  upon  public  health,  economy  and  general  welfare, 
and  to  approximately  "size  up"   results,  he  might  con- 
clude that  single  changes  as  narrow  in  scope  as  we  have 
been  invited  to  make  this  one  were  out  of  the  question 
if  public  calamity  were  certain  to  be  ultimately  avoided. 
But  the  subject  of  greatly    curtailing    the    power    to 
change  a  constitution  seemed  to  us  to  be  more  vital  than 
is  generally  supposed ;  and  "there  was  thus  a  temptation 
to  add  these  observations  under  Part  II  by  way  of  con- 
formation  and  emphasis  to  the  conclusions  under  Part  I. 
That  a  "majority  should  rule"  in  the  exigency  that  no 
other  action  is  possible  to  save  the  "peace  and  tranquil- 
lity" or  the  very  existence  of  the  state,  is  admitted  to  be 
"a  fundamental  principle  of  legislation"  and  "the  com- 
mon practice  of  all  free  governments:' 

And  we  believe  that  a  profound  study  of  this  principle 
and  the  tracing  of  it  to  its  logical  source  will  reveal  it 


6o 

as  a  legal  implication,  and  to  lie  safe  and  unassailable 
at  some  distance  this  side  of  revolution,  "silent"  or 
otherwise. 

In  the  gathering  cry  of  despair  throughout  the  coun- 
try at  amending  the  Federal  Constitution  (when  radical 
changes  shall  have  become  necessary)  through  its  de- 
clared stringent  provisions,  it  might  be  profitable  to  think 
of  this  as  a  possible  way  out;  and  to  consider  the  histor- 
ical precedents  therefor  in  several  of  the  states. 


The  annexed  draft  of  amendment  is  the  one  last  offered 
in  the  Assembly  in  1901. 

We  concede  that  it  has  too  much  ''mechanics"  in  it. 

But  these  were  dictated  by  the  influences  and  conditions 
with  which  the  Federation  was  beset,  and  accepted  under 
protest.  We  hope  that  some  of  these  may  finally  be 
dropped;  and  that  a  new  and  simpler  draft  embodying 
the  main  features  be  submitted. 

But  for  the  purpose  of  testing  the  specific  question  of 
whether  or  not  varied  or  complex  provisions  can  be  validly 
placed  in  amendments  submitted  at  one  session  the  said 
annexed  draft  is  probably  as  good  as  any  other. 

Respectfully  submitted. 

Harry  S.  Mecartney,"! 
Chairman.     1 
E.  Allen  Frost^ 
Robert  McMurdy^ 

Chicago,  September  22,  1902. 


Committee. 


6i 


Draft  of  Amendment. 

(Siihmitlcd  to  Assembly  of  1901.) 

Resolved,  by  the  Senate,  the  House  of  Representa- 
tives concurring  herein.  That  there  shall  be  submitted  to 
the  voters  of  this  state  at  the  next  election  of  members 
of  the  General  Assembly  a  proposition  to  so  amend  the 
seventh  section  of  Article  X  of  the  Constitution  of  this 
state  that  the  same  shall  read  as  follows: 

Section  7.  The  General  Assembly  may  provide  for 
the  consolidation  of  city,  county,  township,  park  district, 
sanitary  district  and  other  governmental  functions,  or  a 
part  thereof,  within  the  limits  of  the  City  of  Chicago  or 
the  County  of  Chicago,  hereinafter  provided  for,  or  any 
part  thereof,  and  no  act  providing  for  or  amending  such 
consolidation  scheme,  or  relating  to  the  governmental 
affairs  of  the  City  of  Chicago,  or  such  County  of  Chi- 
cago, shall  be  held  invalid  for  violating  any  provision  of 
this  article  of  this  Constitution,  or  any  provision  of  Sec- 
tion 22  of  Article  IV  of  this  Constitution  relat- 
ing to  county,  township  or  municipal  affairs. 
Such  consolidation  scheme  shall  provide  that  a 
county  shall  be  formed  of  the  territory  com- 
prising the  present  City  of  Chicago  and  that  part  of  the 
township  of  Norwood  Park,  which  was  formerly  a  part 
of  the  township  of  Jefferson,  which  shall  be  known 
as  the  County  of  Chicago,  and  shall  also  provide  ior 
courts  and  C(junty  government,  and  for  fixing  the  county 
seat  or  seats  for  the  remainder  of  Cook  County,  as  in  the 
case  of  new  counties,  by  a  vote  of  the  legal  voters  there- 
of, and  shall  provide  a  just  method  of  apportioning  the 
debts  and  proi)erty  of  Cook  County  between  the  counties 
constituted  or  affected.  Not  more  than  two  counties 
shall  be  formed  from  such  remaining  territory.  Terri- 
tory may  be  annexed  to  or  separated  from  said  County 
of  Chicago  in  the  method  provided  by  this  constitution 
and  the  general  laws  of  the  state,  irrespective  of  the  pro- 
visions of  Section  i  of  this  article,  proz^ided  that  any 
change  of  county  boundaries  in  violation  of  said  section 
shall  only  l)c  made  by  consent  of  a  majority  of  the  legal 
voters  of  the  remaining  |>ortion  of  the  county  fnnn  which 
it  is  proposed  to  separate  such  territory. 


62 

No  act  providing  a  scheme  of  consolidation  hereunder 
shall  take  effect  until  submitted  to  the  vote  of  the  elect- 
ors of  said  Cook  County,  at  a  separate  election  to  be  held 
therefor,  and  ratified  by  a  majority  of  the  legal  voters 
voting  thereon,  of  the  City  of  Chicago,  and  also  by  a 
like  majority  of  the  legal  voters  voting  thereon  of  that 
portion  of  Cook  County  outside  of  said  city,  and  any 
amendment  thereto  or  any  local  or  special  law  relating 
to  the  governmental  affairs  of  the  City  of  Chicago  or 
the  County  of  Chicago,  shall  be  ratified  by  a  majority  of 
the  electors  voting  thereon  of  the  district  affected  before 
taking  effect.  Upon  the  taking  effect  of  a  scheme  of 
consolidation  hereunder,  all  the  provisions  of  this  Con- 
stitution relating  to  Cook  County  shall  be  deemed  to 
apply  to  said  County  of  Chicago.  Until  otherwise  pro- 
vided, the  affairs  of  Cook  County  shall  be  managed  as 
now  provided  by  law. 

The  City  of  Chicago  may  be  allowed  to  become  in- 
debted, in  the  aggregate,  including  existing  indebted- 
ness, not  exceeding  five  per  centum  on  the  full  value  of 
the  taxable  property  therein,  to  be  ascertained  by  the  last 
assessment  for  state  and  county  taxes,  previous  tO'  the 
incurring  of  such  indebtedness. 

The  authorities  of  such  City  or  County  of  Chicago 
shall  not  be  given  power  to  permit  the  sale  of  intoxicat- 
ing liquors  in  any  district  where  such  sales  are  prohib- 
ited at  the  time  of  the  adoption  of  this  amendment. 

The  General  Assembly  may  provide  for  abolishing  the 
offices  of  justice  of  the  peace  and  constable  within  the 
City  of  Chicago  or  the  County  of  Chicago,  when  estab- 
lished, and  for  the  substitution  therefor  of  other  courts 
and  officers. 


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